"Kj Msm/ A-i/NC^r'^c. I - X.
.d.Ttl- G
The
NORTH CAROLINA
REGISTER
IN TfflS ISSUE
GENERAL STATUTES
i\
PROPOSED RULES
Auctioneers Licensing Board
Environment, Health, and Natural Resources
Human Resources
Justice
Opticians, Board of
State Personnel
RRC OBJECTIONS
CONTESTED CASE DECISIONS
,»sECEiVEO
SEP 9 1994
LA'.V L155RARY
ISSUE DATE: September 1, 1994
Volume 9 • Issue 11 • Rages 780 - 876
INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODF.
NORTH CAROLINA REGISTER
The North Carolina Register is published twice a month and
contains infonnation relating to agency, executive, legislative and
judicial actions required by or affecting Chapter 150B of the General
Statutes. All proposed administrative rules and notices of public
hearings filed under G.S.I 50B-2 1 .2 must be published in the Register.
The Register will typically comprise approximately fifty pages per
issue of legal text.
State law requires that a copy of each issue be provided firee of
charge to each county in the state and to various state officials and
institutions.
The North Carolina Register is available by yearly subscription at
a cost of one hundred and five dollars ($105.00) for 24 issues.
Individual issues may be purchased for eight dollars ($8.00).
Requests for subscription to the North Carolina Register should be
directed to the Office of Administrative Hearings, P. O. Drawer 27447,
Raleigh.N.C. 27611-7447.
ADOPTION, AMENDMENT, AND REPEAL OF
RULES
The following is a generalized statement of the procedures to be
followed for an agency to adopt, amend, or repeal a rule. For the
specific statutory authority, please consult Article 2A of Chapter 150B
of the General Statutes.
Any agency intending to adopt, amend, or repeal a rule must first
publish notice of the proposed action in the North Carolina Register.
The notice must include the time and place of the public hearing (or
instructions on how a member of the public may request a hearing); a
statement of procedure for public comments; the text of the proposed
rule or the statement of subject matter; the reason for the proposed
action; a reference to the statutory authority for the action and the
proposed effective date.
Unless a specific statute provides otherwise, at least 15 days must
elapse following publication of the notice in the North Carolina
RegisterbefoK the agency may conduct the public hearing and at least
30 days must elapse before the agency can take action on the proposed
rule. An agency may not adopt a rule that differs substantially from the
proposed form pubUshed as part of the public notice, imtil the adopted
version has been pubUshed in the North Carolina Register for an
additional 30 day comment period.
When final action is taken, the promulgating agency must file the
rule with the Rules Review Commission (RRC). After approval by
RRC, the adopted rule is filed with the Office of Administrative
Hearings (OAH).
A rule or amended rule generally becomes effective 5 business
days after the rule is filed with the Office of Administrative Hearings
for publication in the North Carolina Administrative Code (NCAC).
Proposed action on rules may be withdrawn by the promulgating
agency at any time before final action is taken by the agency or before
filing with OAH for publication in the NCAC.
TEMPORARY RULES
Under certain emergency conditions, agencies may issue tempo
rary rules. Within 24 hours of submission to OAH, the Codifier ol
Rules must review the agency' s written statement of findings of neet
for the temporary rule pursuant to the provisions in G.S. 150B-21.1. 1
the Codifier determines that the findings meet the criteria in G.S
150B-21.1, the rule is entered into the NCAC. If the Codifiei
determines that the findings do not meet the criteria, the rule is returnee
to the agency. The agency may supplement its findings and resubmi
the temporary rule for an additional review or the agency may responc
that it will remain with its initial position. The Codifier, thereafter, wil
enter the rule into the NCAC. A temporary rule becomes effectiv«
either when the Codifier of Rules enters the rule in the Code or on tlx
sixth business day after the agency resubmits the rule without change
The temporary rule i s in effect for the period specified in the rule or 1 8(
days, whichever is less. An agency adopting a temporary rule mus
begin rule-making procedures on the permanent rule at the same timi
the temporary rule is filed with the Codifier. ^^U
NORTH CAROLINA ADMINISTRATIVE CODE
The North Carolina Administrative Code (NC AQ is a compilatii
and index of the administrative rules of 25 state agencies and 31
occupational licensing boards. The NCAC comprises approximate!]
15,(X)0 letter size, single spaced pages of material of which approxi
mately 35% is changed annually. Compilation and publication of thi
NCAC is mandated by G.S. 150B-21.18.
The Code is divided into Titles and Chapters. Each state agency i
assigned a separate title which is further broken down by chaptei
Title 21 is designated for occupational licensing boards.
The NCAC is available in two formats.
(1) Single pages may be obtained at a minimum cost of tw(
dollars and 50 cents ($2.50) for 10 pages or less, plus fifteei
cents ($0.15) per each additional page.
(2) The full publication consists of 53 volumes, totaling i
excess of 15, (XX) pages. It is supplemented monthly wit
replacement pages. A one year subscription to the fill
publication including supplements can be purchased fo
seven hundred and fifty dollars ($750.00). Individual vol
umes may also be purchased with supplement service. Re
newal subscriptions for supplements to the initial publicatio
are available.
Requests for pages of rules or volumes of the NCAC should b
directed to the Office of Administrative Hearings.
CITATION TO THE NORTH CAROLINA
REGISTER
TTie North Carolina Register is cited by volume, issue, pag
number and date. 1:1 NCR 101-201, April 1, 1986 refers to Vohim
1, Issue 1, pages 101 through 201 of theNorthCarolinaRegisterissM
on April 1, 1986.
FOR INFORMATION CONTACT: Office of Administra-
tive Hearings, ATTN: Rules Division, P.O. Drawer 27447,
Raleigh, North Carolina 2761 1-7447, (919) 733-2678.
NORTH
CAROLINA
REGISTER
Office of Administrative Hearings
P. O. Drawer 27447
Raleigh, North Carolina 27611-7447
(919) 733-2678
Julian Mann HI,
Director
James R. Scarcella Sr.,
Deputy Director
Molly Masich,
Director ofAPA Services
Staff:
Ruby Creech,
Publications Coordinator
Teresa Kilpatrick,
Editorial Assistant
Jean Shirley,
Editorial Assistant
This publication is printed on permanent,
acid-free paper in compliance with
as. 125-11.13.
ISSUE CONTENTS
GENERAL STATUTES
Chapter 150B
780
n. PROPOSED RULES
Environment, Health, and
Natural Resources
Coastal Management 825
DEM/ Air Quality 805
Health Services 834
Marine Fisheries 820
Wildlife Resources 830
Human Resources
Social Services 802
Justice
Alarm Systems Licensing Board 804
Private Protective Services 802
Licensing Boards
Auctioneers Licensing Board . . . 836
Opticians, Board of 845
State Personnel
Office of State Personnel 847
in. RRC OBJECTIONS 849
rV. CONTESTED CASE DECISIONS
Index to ALJ Decisions 854
Text of Selected Decisions
93 EDC 0742 863
94 ABC 0257 870
V. CUMULATIVE INDEX 874
NORTH CAROLINA REGISTER
Publication Schedule
(April 1994 - January 1995)
Volume
and
Issue
Number
Issue
Date
Last Day
for
Filing
Last Day
for Elec-
tronic
Filing
Earliest
Date for
Public
Hearing
15 days
from
notice
* End of
Required
Comment
Period
30 days
from
notice
T ^st Day
to Submit
to RRC
** EarUest
Effective
Date
9:1
04/04/94
03/11/94
03/18/94
04/19/94
05/04/94
05/20/94
07/01/94
9:2
04/15/94
03/24/94
03/31/94
05/02/94
05/16/94
05/20/94
07/01/94
9:3
05/02/94
04/11/94
04/18/94
05/17/94
06/01/94
06/20/94
08/01/94
9:4
05/16/94
04/25/94
05/02/94
05/31/94
06/15/94
06/20/94
08/01/94
9:5
06/01/94
05/10/94
05/17/94
06/16/94
07/01/94
07/20/94
09/01/94
9:6
06/15/94
05/24/94
06/01/94
06/30/94
07/15/94
07/20/94
09/01/94
9:7
07/01/94
06/10/94
06/17/94
07/18/94
08/01/94
08/22/94
10/01/94
9:8
07/15/94
06/23/94
06/30/94
08/01/94
08/15/94
08/22/94
10/01/94
9:9
08/01/94
07/11/94
07/18/94
08/16/94
08/31/94
09/20/94
11/01/94
9:10
08/15/94
07/25/94
08/01/94
08/30/94
09/14/94
09/20/94
11/01/94
9:11
09/01/94
08/11/94
08/18/94
09/16/94
10/03/94
10/20/94
12/01/94
9:12
09/15/94
08/24/94
08/31/94
09/30/94
10/17/94
10/20/94
12/01/94
9:13
10/03/94
09/12/94
09/19/94
10/18/94
11/02/94
11/21/94
01/01/95
9:14
10/14/94
09/23/94
09/30/94
10/31/94
11/14/94
11/21/94
01/01/95
9:15
11/01/94
10/11/94
10/18/94
11/16/94
12/01/94
12/20/94
02/01/95
9:16
11/15/94
10/24/94
10/31/94
11/30/94
12/15/94
12/20/94
02/01/95
9:17
12/01/94
11/07/94
11/15/94
12/16/94
01/03/95
01/20/95
03/01/95
9:18
12/15/94
11/22/94
12/01/94
12/30/94
01/17/95
01/20/95
03/01/95
9:19
01/03/95
12/08/94
12/15/94
01/18/95
02/02/95
02/20/95
04/01/95
9:20
01/17/95
12/21/94
12/30/94
02/01/95
02/16/95
02/20/95
04/01/95
This table is published as a public service, and the computation of time periods are not to be deemed binding
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule
6.
* An agency must accept comments for at least 30 days after the proposed text is published or until the date
of any public hearing, whichever is longer. See G.S. 150B-2 1.2(f) for adoption procedures.
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above,
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next
calendar month.
Revised 03/94
GENERAL STATUTES OF NORTH CAROLINA
CHAPTER 150B
THE ADMINISTRATIVE PROCEDURE ACT
[The following excerpt contains the statutory provisions of the Administrative Procedure Act as amended by
the 1994 Regular Session of the 1993 General Assembly, effective July 17, 1994 (§150B-21.18) and January
1, 1995 (§150B-23(a)).]
Article 1.
General Provisions.
§ 150B-1. Policy and scope.
(a) Purpose. — This Chapter establishes a uni-
form system of administrative rule making and
adjudicatory procedures for agencies. The proce-
dures ensure that the functions of rule making,
investigation, advocacy, and adjudication are not
all performed by the same person in the adminis-
trative process.
(b) Rights. — This Chapter confers procedural
rights.
(c) Full Exemptions. — This Chapter applies to
every agency except:
(1) The North Carolina National Guard in
exercising its court-martial jurisdiction.
(2) The Department of Human Resources
in exercising its authority over the
Camp Butner reservation granted in
Article 6 of Chapter 122C of the Gen-
eral Statutes.
(3) The Utilities Commission.
(4) The Industrial Commission.
(5) The Employment Security Commission.
(d) Exemptions From Rule Making. - Article
2A of this Chapter does not apply to the following:
(1) The Commission.
(2) The North Carolina Low-Level Radio-
active Waste Management Authority in
administering the provisions of G.S.
104G-10and G.S. 104G-11.
(3) The North Carolina Hazardous Waste
Management Commission in administer-
ing the provisions of G.S. 130B-13 and
G.S. 130B-14.
(4) The Department of Revenue, except
that Parts 3 and 4 of Article 2A apply
to the Department.
(5) The North Carolina Air Cargo Airport
Authority with respect to the acquisi-
tion, construction, operation, or use,
including fees or charges, of any por-
tion of a cargo airport complex.
(e) Exemptions From Contested Case Provi-
sions. — The contested case provisions of this
Chapter apply to all agencies and all proceedings
not expressly exempted from the Chapter. The
contested case provisions of this Chapter do not
apply to the following:
(1) The Department of Human Resources
and the Department of Environment,
Health, and Natural Resources in com-
plying with the procedural safeguards
mandated by Section 680 of F^rt H of
Public Law 99-457 as amended (Educa-
tion of the Handicapped Act Amend-
ments of 1986).
(2) Repealed by Session Lav^ 1993 c. 501,
s. 29, effective July 23, 1993.
(3) The North Carolina Low-Level Radio-
active Waste Management Authority in
administering the provisions of G.S.
104G-9, 104G-10, and 104G-11.
(4) The North Carolina Hazardous Waste
Management Commission in administer-
ing the provisions of G.S. 130B-11,
130B-13, and 130B-14.
(5) Hearings required pursuant to the Reha-
bilitation Act of 1973, (Public Law
93-122), as amended and federal regu-
lations promulgated thereunder. G.S.
150B-51(a) is considered a contested
case hearing provision that does not
apply to these hearings.
(6) The Department of Revenue.
(7) The Department of Correction.
(8) The Department of Transportation,
except as provided in G.S. 136-29.
(9) The Occupational Safety and Health
Review Board in all actions that do not
involve agricultural employers.
(10) The North Carolina Air Cargo Airport
Authority with respect to the acquisi-
tion, construction, operation, or use,
including fees or charges, of any por-
tion of a cargo airport complex.
(f) Exemption From All But Judicial Review. —
No Article in this Chapter except Article 4 applies
to the University of North Carolina.
§ 150B-2. Defmitions. — As used in this
9:11
NORTH CAROLINA REGISTER
September 1, 1994
780
GENERAL STATUTES OF NORTH CAROUNA
Chapter,
(01)
(1)
(la)
(lb)
(Ic)
(2)
(2a)
(2b)
(3)
(4)
(4a)
"Administrative law judge" means a
person appointed under G.S. 7A-752,
7A-753, or 7A-757.
"Agency" means an agency or an offi-
cer in the executive branch of the gov-
enmient of this State and includes the
Council of State, the Governor's Of-
fice, a board, a commission, a depart-
ment, a division, a council, and any
other unit of government in the execu-
tive branch. A local unit of govern-
ment is not an agency.
"Adopt" means to take final action to
create, amend, or repeal a rule.
"Codifier of Rules" means the Chief
Administrative Law Judge of the Office
of Administrative Hearings or a desig-
nated representative of the Chief Ad-
ministrative Law Judge.
"Commission" means the Rules Review
Commission.
"Contested case" means an administra-
tive proceeding pursuant to this Chapter
to resolve a dispute between an agency
and another person that involves the
person's rights, duties, or privileges,
including licensing or the levy of a
monetary penalty. "Contested case"
does not include rulemaking, declarato-
ry rulings, or the award or denial of a
scholarship or grant.
Repealed by Session Laws 1991, c.
418, s. 3, effective October 1, 1991.
"Hearing officer" means a person or
group of persons designated by an
agency that is subject to Article 3A of
this Chapter to preside in a contested
case hearing conducted under that Arti-
cle.
"License" means any certificate, permit
or other evidence, by whatever name
called, of a right or privilege to engage
in any activity, except licenses issued
under Chapter 20 and Subchapter 1 of
Chapter 105 of the General Statutes and
occupational licenses.
"Licensing" means any administrative
action issuing, failing to issue, suspend-
ing, or revoking a license or occupa-
tional license. "Licensing" does not
include controversies over whether an
examination was fair or whether the
applicant passed the examination.
"Occupational license" means any
certificate, permit, or other evidence,
by whatever name called, of a right or
privilege to engage in a profession,
occupation, or field of endeavor that is
issued by an occupational licensing
agency.
(4b) "Occupational licensing agency" means
any board, commission, committee or
other agency of the State of North
Carolina which is established for the
primary purpose of regulating the entry
of persons into, and/or the conduct of
persons within a particular profession,
occupation or field of endeavor, and
which is authorized to issue and revoke
licenses. "Occupational licensing agen-
cy" does not include State agencies or
departments which may as only a part
of their regular function issue permits
or licenses.
(5) "Party" means any person or agency
named or admitted as a party or proper-
ly seeking as of right to be admitted as
a party and includes the agency as
appropriate. This subdivision does not
permit an agency that makes a final
decision, or an officer or employee of
the agency, to petition for initial judi-
cial review of that decision.
(6) "Person aggrieved" means any person
or group of persons of common interest
directly or indirectly affected substan-
tially in his or its person, property, or
employment by an administrative deci-
sion.
(7) "Person" means any natural person,
partnership, corporation, body politic
and any unincorporated association,
organization, or society which may sue
or be sued under a common name.
(8) "Residence" means domicile or princi-
pal place of business.
(8a) "Rule" means any agency regulation,
standard, or statement of general appli-
cability that implements or interprets an
enactment of the General Assembly or
Congress or a regulation adopted by a
federal agency or that describes the
procedure or practice requirements of
an agency. The term includes the
establishment of a fee and the amend-
ment or repeal of a prior rule. The
term does not include the following:
a. Statements concerning only the
internal management of an agency
781
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NORTH CAROUNA REGISTER
September 1, 1994
GENERAL STATUTES OF NORTH CAROLINA
or group of agencies within the
same principal office or depart-
ment enumerated in G.S. 143-11
or 143B-6, including policies and
procedures manuals, if the state-
ment does not directly or substan-
tially affect the procedural or
substantive rights or duties of a
person not employed by the agen-
cy or group of agencies.
b. Budgets and budget policies and
procedures issued by the Director
of the Budget, by the head of a
department, as defined by G.S.
143A-2 or G.S. 143B-3, by an
occupational licensing board, as
defined by G.S. 93B-1, or by the
State Board of Elections.
c. Nonbinding interpretive state-
ments within the delegated author-
ity of an agency that merely
define, interpret, or explain the
meaning of a statute or rule.
d. A form, the contents or substan-
tive requirements of which are
prescribed by rule or statute.
e. Statements of agency policy made
in the context of another proceed-
ing, including:
1. Declaratory rulings under G.S.
150B-4.
2. Orders establishing or fixing
rates or tariffs.
f. Requirements, communicated to
the public by the use of signs or
symbols, concerning the use of
public roads, bridges, ferries,
buildings, or facilities.
g. Statements that set forth criteria
or guidelines to be used by the
staff of an agency in performing
audits, investigations, or inspec-
tions; in settling financial disputes
or negotiating financial arrange-
ments; or in the defense, prosecu-
tion, or settlement of cases.
h. Scientific, architectural, or engi-
neering standards, forms, or
procedures, including design
criteria and construction standards
used to construct or maintain
highways, bridges, or ferries.
i. Job classification standards, job
qualifications, and salaries estab-
lished for positions under the
jurisdiction of the State Personnel
Commission,
j. Establishment of the interest rate
that applies to tax assessments
under G.S. 105-241.1 and the
variable component of the excise
tax on motor fuel under G.S.
105-434.
(8b) "Substantial evidence" means relevant
evidence a reasonable mind might
accept as adequate to support a con-
clusion.
(9) Repealed by Session Laws 1991, c. 418
s. 3, effective October 1, 1991.
§ 150B-3. Special provisions on licensing.
(a) When an applicant or a licensee makes a
timely and sufficient application for issuance or
renewal of a license or occupational license,
including the payment of any required license fee,
the existing license or occupational license does
not expire until a decision on the application is
finally made by the agency, and if the application
is denied or the terms of the new license or occu-
pational license are limited, until the last day for
applying for judicial review of the agency order.
This subsection does not affect agency action
summarily suspending a license or occupational
license under subsections (b) and (c) of this sec-
tion.
(b) Before the commencement of proceedings
for the suspension, revocation, annulment, with-
drawal, recall, cancellation, or amendment of any
license other than an occupational license, the
agency shall give notice to the licensee, pursuant
to the provisions of G.S. 150B-23. Before the
commencement of such proceedings involving an
occupational license, the agency shall give notice
pursuant to the provisions of G.S. 150B-38. In
either case, the licensee shall be given an opportu-
nity to show compliance with all lawful require-
ments for retention of the license or occupational
license.
(c) If the agency finds that the public health,
safety, or welfare requires emergency action and
incorporates this finding in its order, summary
suspension of a license or occupational license may
be ordered effective on the date specified in the
order or on service of the certified copy of the
order at the last known address of the licensee,
whichever is later, and effective during the pro-
ceedings. The proceedings shall be promptly
commenced and determined.
Nothing in this subsection shall be construed as
amending or repealing any special statutes, in
effect prior to February 1, 1976, which provide
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NORTH CAROLINA REGISTER
September 1, 1994
782
GENERAL STATUTES OF NORTH CAROLINA
for the summary suspension of a license.
§ 150B-4. Declaratory rulings.
(a) On request of a person aggrieved, an agency
shall issue a declaratory ruling as to the validity of
a rule or as to the applicability to a given state of
fects of a statute administered by the agency or of
a rule or order of the agency, except when the
agency for good cause finds issuance of a ruling
undesirable. The agency shall prescribe in its
rules the circumstances in which rulings shall or
shall not be issued. A declaratory ruling is bind-
ing on the agency and the person requesting it
unless it is altered or set aside by the court. An
agency may not retroactively change a declaratory
ruling, but nothing in this section prevents an
agency from prosp)ectively changing a declaratory
ruling. A declaratory ruling is subject to judicial
review in the same manner as an order in a con-
tested case. Failure of the agency to issue a
declaratory ruling on the merits within 60 days of
the request for such ruling shall constitute a denial
of the request as well as a denial of the merits of
the request and shall be subject to judicial review.
(b) This section does not apply to the Depart-
ment of Correction.
Article 2.
Rule Making.
Repealed .
Article 2A.
Rules.
Part 1 . General Provisions.
§ 150B-18. Scope and effect.
This Article applies to an agency's exercise of its
authority to adopt a rule. A rule is not valid
unless it is adopted in substantial compliance with
this Article.
§ 150B-19. Restrictions on what can be adopt-
ed as a rule.
An agency may not adopt a rule that does one or
more of the following:
(1) Implements or interprets a law unless
that law or another law specifically
authorizes the agency to do so.
(2) Enlarges the scope of a profession,
occupation, or field of endeavor for
which an occupational license is re-
quired.
(3) Imposes criminal liability or a civil
penalty for an act or omission, includ-
ing the violation of a rule, unless a law
specifically authorizes the agency to do
so or a law declares that violation of
the rule is a criminal oifense or is
grounds for a civil penalty.
(4) Repeats the content of a law, a rule, or
a federal regulation.
(5) Establishes a reasonable fee or other
reasonable charge for providing a ser-
vice in fulfillment of a duty unless a
law specifically authorizes the agency
to do so or the fee or other charge is
for one of the following:
a. A service to a State, federal, or local
governmental unit.
b. A copy of part or all of a State publi-
cation or other document, the cost of
mailing a document, or both.
c. A transcript of a public hearing.
d. A conference, workshop, or course.
e. Data processing services.
(6) Allows the agency to waive or modify
a requirement set in a rule unless a rule
establishes specific guidelines the agen-
cy must follow in determining whether
to waive or modify the requirement.
§ 150B-20. Petitioning an agency to adopt a
rule.
(a) Petition. — A person may petition an agency
to adopt a rule by submitting to the agency a
written rule-making petition requesting the adop-
tion. A person may submit written comments with
a rule-making petition. If a rule-making petition
requests the agency to create or amend a rule, the
p)erson must submit the proposed text of the
requested rule change and a statement of the effect
of the requested rule change. Each agency must
establish by rule the procedure for submitting a
rule-making petition to it and the procedure the
agency follows in considering a rule-making
petition.
(b) Time. — An agency must grant or deny a
rule-making petition submitted to it within 30 days
after the date the rule-making petition is submitted,
unless the agency is a board or commission. If the
agency is a board or commission, it must grant or
deny a rule-making petition within 120 days after
the date the rule-making petition is submitted.
(c) Action. — If an agency denies a rule-making
petition, it must send the person who submitted the
petition a written statement of the reasons for
denying the petition. If an agency grants a
rule-making petition, it must inform the jserson
who submitted the rule-making petition of its
decision and must initiate rule-making proceedings.
When an agency grants a rule-making petition
requesting the creation or amendment of a rule, the
notice of rule making it publishes in the North
Carolina Register may state that the agency is
initiating rule-making proceedings as the result of
783
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NORTH CAROLINA REGISTER
September 1, 1994
GENERAL STATUTES OF NORTH CAROLINA
a rule-making petition, state the name of the
person who submitted the rule-making petition, set
out the text of the requested rule change submitted
with the rule-making petition, and state whether
the agency endorses the proposed rule change.
(d) Review. — Denial of a rule-making petition
is a final agency decision and is subject to judicial
review under Article 4 of this Chapter. Failure of
an agency to grant or deny a rule-making petition
within the time limits set in subsection (b) is a
denial of the rule-making petition.
(e) Exception. — This section does not apply to
the Department of Correction.
§ 150B-21. Agency must designate
rule-making coordinator.
Each agency must designate one or more
rule-making coordinators to oversee the agency's
rule-making functions. The coordinator must
prepare notices of public hearings, coordinate
access to the agency's rules, and serve as the
liaison between the agency, other agencies, and the
public in the rule-making process.
Part 2. Adoption of Rules.
§ 150B-21.1. Procedure for adopting a tem-
porary rule.
(a) Adoption. — An agency may adopt a tempo-
rary rule without prior notice or hearing or upon
any abbreviated notice or hearing the agency finds
practical when it finds that adherence to the notice
and hearing requirements of this Part would be
contrary to the public interest and that the immedi-
ate adoption of the rule is required by one or more
of the following:
(1) A serious and unforeseen threat to the
public health, safety, or welfare.
(2) The effective date of a recent act of the
General Assembly or the United States
Congress.
(3) A recent change in federal or State
budgetary policy.
(4) A federal regulation.
(5) A court order.
(6) The need for the rule to become effec-
tive the same date as the State Medical
Facilities Plan approved by the Gover-
nor, if the rule addresses a matter
included in the State Medical Facilities
Plan.
An agency must prepare a written statement of
its findings of need for a temporary rule. The
statement must be signed by the head of the agen-
cy adopting the rule.
An agency must begin rule-making proceedings
for a permanent rule by the day it adopts a tempo-
rary rule. An agency begins rule-making proceed-
ings for a permanent rule by submitting to the
Codifier of Rules written notice of its intent to
adopt a permanent rule.
(b) Review. — When an agency adopts a tempo-
rary rule it must submit the rule, the agency's
written statement of its findings of need for the
rule, and the notice of intent to adopt a permanent
rule to the Codifier of Rules. Within one business
day after an agency submits a temporary rule, the
Codifier of Rules must review the agency's written
statement of findings of need for the rule to deter-
mine whether the statement of need meets the
criteria listed in subsection (a). In reviewing the
statement, the Codifier of Rules may consider any
information submitted by the agency or another
person. If the Codifier of Rules finds that the
statement meets the criteria, the Codifier of Rules
must notify the head of the agency and enter the
rule in the North Carolina Administrative Code.
If the Codifier of Rules finds that the statement
does not meet the criteria, the Codifier of Rules
must immediately notify the head of the agency.
The agency may supplement its statement of need
with additional findings or submit a new statement.
If the agency provides additional findings or
submits a new statement, the Codifier of Rules
must review the additional findings or new state-
ment within one business day after the agency
submits the additional findings or new statement.
If the Codifier of Rules again finds that the state-
ment does not meet the criteria listed in subsection
(a), the Codifier of Rules must immediately notify
the head of the agency.
If an agency decides not to provide additional
findings or submit a new statement when notified
by the Codifier of Rules that the agency's findings
of need for a rule do not meet the required crite-
ria, the agency must notify the Codifier of Rules
of its decision. The Codifier of Rules must then
enter the rule in the North Carolina Administrative
Code on the sixth business day after receiving
notice of the agency's decision.
(c) Standing. — A person aggrieved by a tempo-
rary rule adopted by an agency may file an action
for declaratory judgment in Wake County Superior
Court pursuant to Article 26 of Chapter 1 of the
General Statutes. In the action, the court shall
determine whether the agency's written statement
of findings of need for the rule meets the criteria
listed in subsection (a) and whether the rule meets
the standards in G.S. 150B-2I.9 that apply to
review of a permanent rule. The court may not
grant an ex parte temporary restraining order.
Filing a petition for rule making or a request for
a declaratory ruling with the agency that adopted
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GENERAL STATUTES OF NORTH CAROLINA
the rule is not a prerequisite to filing an action
under this subsection. A person who files an
action for declaratory judgment under this subsec-
tion must serve a copy of the complaint on the
agency that adopted the rule being contested, the
Codifier of Rules, and the Commission.
(d) Effective Date and Expiration. — A tempo-
rary rule becomes effective on the date specified in
G.S. 150B-21.3. A temporary rule expires on the
date specified in the rule or 180 days from the date
the rule becomes effective, whichever comes first.
§ 150B-21.2. Procedure for adopting a per-
manent rule.
(a) Notice. — Before an agency adopts a perma-
nent rule, it must publish notice of its intent to
adopt a permanent rule in the North Carolina
Register and as required by any other law. The
notice published in the North Carolina Register
must include all of the following:
(1) Either the text of the proposed rule or
a statement of the subject matter of the
proposed rule making.
(2) A short explanation of the reason for
the proposed action.
(3) A citation to the law that gives the
agency the authority to adopt the pro-
posed rule, if the notice includes the
text of the proposed rule, or a citation
to the law that gives the agency the
authority to adopt a rule on the subject
matter of the proposed rule making, if
the notice includes only a statement of
the subject matter of the proposed rule
making.
(4) The profMDsed effective date of the
proposed rule, if the notice includes the
text of the proposed rule, or the pro-
posed effective date of a rule adopted
on the subject matter of the proposed
rule making, if the notice includes only
a statement of the subject matter of the
proposed rule making.
(5) The date, time, and place of any public
hearing scheduled on the proposed rule
or subject matter of the proposed rule
making.
(6) Instructions on how a pjerson may
demand a public hearing on a proposed
rule if the notice does not schedule a
public hearing on the proposed rule and
subsection (c) requires the agency to
hold a public hearing on the proposed
rule when requested to do so.
(7) The {jeriod of time during which and
the person to whom written comments
may be submitted on the proposed rule
or subject matter of the proposed rule
making.
(8) If a fiscal note has been prepared for
the proposed rule or will be prepared
when a rule is proposed on the subject
matter of the proposed rule making, a
statement that a copy of the fiscal note
can be obtained from the agency.
(b) Mailing List. — An agency must maintain a
mailing list of piersons who have requested notice
of rule making. When an agency publishes a
rule-making notice in the North Carolina Register,
it must mail a copy of the notice to each person on
the mailing list who has requested notice of
rule-making proceedings on the rule or the subject
matter for rule making described in the notice. An
agency may charge an annual fee to each person
on the agency's mailing list to cover copying and
mailing costs.
(c) Hearing. — An agency must hold a public
hearing on a rule it proposes to adopt in two
circumstances and may hold a public hearing in
other circumstances. When an agency is required
to hold a public hearing on a proposed rule or
decides to hold a public hearing on a proposed rule
when it is not required to do so, the agency must
publish in the North Carolina Register a notice of
the date, time, and place of the public hearing.
The hearing date of a public hearing held after the
agency publishes notice of the hearing in the North
Carolina Register must be at least 15 days after the
date the notice is published.
An agency must hold a public hearing on a rule
it proposes to adopt in the following two circum-
stances:
(1) The agency publishes a statement of the
subject matter of the proposed rule
making in the notice in the North Caro-
lina Register.
(2) The agency publishes the text of the
proposed rule in the notice in the North
Carolina Register and all the following
apply:
a. The notice does not schedule a public
hearing on the proposed rule.
b. Within 15 days after the notice is
published, the agency receives a
written request for a public hearing on
the proposed rule.
c. The proposed rule is not part of a
rule-making proceeding the agency
initiated by publishing a statement of
the subject matter of proposed rule
making.
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GENERAL STATUTES OF NORTH CAROLINA
d. The proposed text is not a changed
version of proposed text the agency
previously published in the course of
rule-making proceedings but did not
adopt.
(d) Text After Subject-Matter Notice. -- When
an agency publishes notice of the subject matter of
proposed rule making in the North Carolina
Register, it must subsequently publish in the North
Carolina Register the text of the rule it proposes to
adopt as a result of the public hearing and of any
comments received on the subject matter. An
agency may not publish the proposed text of a rule
for which it published a subject-matter notice
before the public hearing on the subject matter.
(e) Comments. — An agency must accept com-
ments on the text of a proposed rule published in
the North Carolina Register for at least 30 days
after the text is published or until the date of any
public hearing held on the proposed rule, whichev-
er is longer. An agency must accept comments on
a statement of the subject matter of proposed rule
making until the public hearing on the subject
matter. An agency must consider fully all written
and oral comments received.
(f) Adoption. — An agency may not adopt a rule
until the time for commenting on the proposed text
of the rule has elapsed and may not adopt a rule if
more than 12 months have elapsed since the end of
the time for commenting on the proposed text of
the rule. An agency may not adopt a rule that
differs substantially from the text of a proposed
rule published in the North Carolina Register
unless the agency publishes the text of the pro-
posed different rule in the North Carolina Register
and accepts comments on the proposed different
rule for the time set in subsection (e).
An adopted rule differs substantially from a
proposed rule if it does one or more of the follow-
ing:
(1) Affects the interests of persons who,
based on the notice published in the
North Carolina Register or the pro-
posed text of the rule, could not reason-
ably have determined that the rule
would affect their interests.
(2) Addresses a subject matter or an issue
that is not addressed in the proposed
text of the rule.
(3) Produces an effect that could not rea-
sonably have been expected based on
the proposed text of the rule.
When an agency adopts a rule, it may not take
subsequent action on the rule without following the
procedures in this Part.
(g) Explanation. — An agency must issue a
concise written statement explaining why the
agency adopted a rule if, within 30 days after the
agency adopts the rule, a person asks the agency to
do so. The explanation must state the principal
reasons for and against adopting the rule and must
discuss why the agency rejected any arguments
made or considerations urged against the adoption
of the rule.
(h) Record. — An agency must keep a record of
a rule-making proceeding. The record must
include all written comments received, a transcript
or recording of any public hearing held on the
rule, and any written explanation made by the
agency for adopting the rule.
§ 150B-21.3. Effective date of rules.
(a) Temporary Rule. — A temporary rule be-
comes effective on the date the Codifier of Rules
enters the rule in the North Carolina Administra-
tive Code.
(b) Permanent Rule. — A permanent rule ap-
proved by the Commission becomes effective five
business days after the Commission delivers the
rule to the Codifier of Rules, unless the agency
adopting the rule specifies a later effective date.
If the agency specifies a later effective date, the
rule becomes effective on that date.
A permanent rule that is not approved by the
Commission becomes effective five business days
after the agency adopting the rule delivers the rule
to the Codifier of Rules, unless the agency adopt-
ing the rule specifies a later effective date. If the
agency specifies a later effective date, the rule
becomes effective on that date.
(c) OSHA Standard. -- A permanent rule con-
cerning an occupational safety and health standard
that is adopted by the Occupational Safety and
Health Division of the Department of Labor and is
identical to a federal regulation promulgated by the
Secretary of the United States Department of
Labor becomes effective on the date the Division
delivers the rule to the Codifier of Rules, unless
the Division specifies a later effective date. If the
Division specifies a later effective date, the rule
becomes effective on that date.
§ 150B-21.4. Fiscal notes on rules.
(a) State Funds. — Before an agency publishes in
the North Carolina Register the proposed text of a
permanent rule change that would require the
expenditure or distribution of funds subject to the
Executive Budget Act, Article 1 of Chapter 143, it
must submit the text of the proposed rule change
and a fiscal note on the proposed rule change to
the Director of the Budget and obtain certification
from the Director that the funds that would be
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GENERAL STATUTES OF NORTH CAROLINA
required by the proposed rule change are available.
The fiscal note must state the amount of funds that
would be expended or distributed as a result of the
proposed rule change and explain how the amount
was computed. The Director of the Budget must
certify a proposed rule change if funds are avail-
able to cover the expenditure or distribution
required by the proposed rule change.
(b) Local Funds. — Before an agency publishes
in the North Carolina Register the proposed text of
a permanent rule change that would affect the
expenditures or revenues of a unit of local govern-
ment, it must submit the text of the proposed rule
change and a fiscal note on the proposed rule
change to the Fiscal Research Division of the
General Assembly, the Office of State Budget and
Management, the North Carolina Association of
County Commissioners, and the North Carolina
League of Municipalities. The fiscal note must
state the amount by which the proposed rule
change would increase or decrease expenditures or
revenues of a unit of local government and must
explain how the amount was computed.
(c) Errors. — An erroneous fiscal note prepared
in good faith does not affect the validity of a rule.
§ 150B-21.5. Circumstances when notice and
rule-making hearing not required.
(a) Amendment. — An agency is not required to
publish a notice of rule making in the North
Carolina Register or hold a public hearing when it
proposes to amend a rule, without changing the
substance of the rule, to do one of the following:
(1) Reletter or renumber the rule or
subparts of the rule.
(2) Substitute one name for another when
an organization or position is renamed.
(3) Correct a citation in the rule to another
rule or law when the citation has be-
come inaccurate since the rule was
adopted because of the repeal or renum-
bering of the cited rule or law.
(4) Change information that is readily
available to the public, such as an
address or a telephone number.
(5) Correct a typographical error made in
entering the rule in the North Carolina
Administrative Code.
(6) Change a rule in response to a request
or an objection by the Commission.
(b) Repeal. — An agency is not required to
publish a notice of rule making in the North
Carolina Register or hold a public hearing when it
proposes to repeal a rule as a result of any of the
following:
(1) The law under which the rule was
adopted is repealed.
(2) The law under which the rule was
adopted or the rule itself is declared
unconstitutional.
(3) The rule is declared to be in excess of
the agency's statutory authority.
(c) OSHA Standard. — The Occupational Safety
and Health Division of the Department of Labor is
not required to publish a notice of rule making in
the North Carolina Register or hold a public
hearing when it proposes to adopt a rule that
concerns an occupational safety and health stan-
dard and is identical to a federal regulation pro-
mulgated by the Secretary of the United States
Department of Labor. The Occupational Safety
and Health Division is not required to submit to
the Commission for review a rule for which notice
and hearing is not required under this subsection.
§ 150B-21.6. Incorporating material in a rule
by reference.
An agency may incorporate the following materi-
al by reference in a rule without repeating the text
of the referenced material:
(1) Another rule or part of a rule adopted by
the agency.
(2) All or part of a code, standard, or regula-
tion adopted by another agency, the
federal government, or a generally recog-
nized organization or association.
(3) Material adopted to meet a requirement
of the federal government.
In incorporating material by reference, the
agency must designate in the rule whether or not
the incorporation includes subsequent amendments
and editions of the referenced material. The
agency can change this designation only by a
subsequent rule-making proceeding. The agency
must have copies of the incorporated material
available for inspection and must specify in the
rule both where copies of the material can be
obtained and the cost on the date the rule is adopt-
ed of a copy of the material.
A statement in a rule that a rule incorporates
material by reference in accordance with former
G.S. 1 SOB- 14(b) is a statement that the rule does
not include subsequent amendments and editions of
the referenced material. A statement in a rule that
a rule incorporates material by reference in accor-
dance with former G.S. 1 SOB- 14(c) is a statement
that the rule includes subsequent amendments and
editions of the referenced material.
§ 150B-21.7. Effect of transfer of duties or
termination of agency on rules.
When a law that authorizes an agency to adopt a
rule is repealed and another law gives the same or
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GENERAL STATUTES OF NORTH CAROLINA
another agency substantially the same authority to
adopt a rule, the rule remains in effect until the
agency amends or repeals the rule. When a law
that authorizes an agency to adopt a rule is re-
pealed and another law does not give the same or
another agency substantially the same authority to
adopt a rule, a rule adopted under the repealed law
is repealed as of the date the law is repealed.
When an executive order abolishes part or all of
an agency and transfers a function of that agency
to another agency, a rule concerning the trans-
ferred function remains in effect until the agency
to which the function is transferred amends or
repeals the rule. When an executive order abolish-
es part or all of an agency and does not transfer a
function of that agency to another agency, a rule
concerning a function abolished by the executive
order is repealed as of the effective date of the
executive order.
The Director of Fiscal Research of the General
Assembly must notify the Codifier of Rules when
a rule is repealed under this section. When noti-
fied of a rule repealed under this section, the
Codifier of Rules must enter the repeal of the rule
in the North Carolina Administrative Code.
Part 3. Review by Commission.
§ 150B-21.8. Review of rule by Commission.
(a) Temporary Rule. — The Commission does
not review a temporary rule.
(b) Permanent Rule. — An agency must submit
a permanent rule adopted by it to the Commission
before the rule can be included in the North
Carolina Administrative Code. The Commission
reviews a permanent rule in accordance with the
standards in G.S. 150B-21.9 and follows the
procedure in this Part in its review of a permanent
rule.
(c) Scope. ~ When the Commission reviews an
amendment to a rule, it may review the entire rule
that is being amended. The procedure in G.S.
150B-21.12 applies when the Commission objects
to a part of a rule that is within its scope of review
but is not changed by a rule amendment.
§ 150B-21.9. Standards and timetable for
review by Commission.
(a) Standards. -- The Commission must deter-
mine whether a rule meets all of the following
criteria:
(1) It is within the authority delegated to
the agency by the General Assembly.
(2) It is clear and unambiguous.
(3) It is reasonably necessary to fulfill a
duty delegated to the agency by the
General Assembly.
The Commission may determine if a rule submit-
ted to it was adopted in accordance with Part 2 of
this Article. The Commission must notify the
agency that adopted the rule if it determines that a
rule was not adopted in accordance with Part 2 of
this Article and must return the rule to the agency.
Entry of a rule in the North Carolina Administra-
tive Code after review by the Commission is
conclusive evidence that the rule was adopted in
accordance with Part 2 of this Article.
(b) Timetable. — The Commission must review
a rule submitted to it on or before the twentieth of
a month by the last day of the next month. The
Commission must review a rule submitted to it
after the twentieth of a month by the last day of
the second subsequent month.
§ 150B-21.10. Commission action on perma-
nent rule.
At the first meeting at which a permanent rule is
before the Commission for review, the Commis-
sion must take one of the following actions:
(1) Approve the rule, if the Commission
determines that the rule meets the stan-
dards for review.
(2) Object to the rule, if the Commission
determines that the rule does not meet the
standards for review.
(3) Extend the period for reviewing the rule,
if the Commission determines it needs
additional information on the rule to be
able to decide whether the rule meets the
standards for review.
In reviewing a new rule or an amendment to an
existing rule, the Commission may request an
agency to make technical changes to the rule and
may condition its approval of the rule on the
agency's making the requested technical changes.
§ 150B-21.il. Procedure when Commission
approves permanent rule.
When the Commission approves a permanent
rule, it must notify the agency that adopted the
rule of the Commission's approval and must
deliver the approved rule to the Codifier of Rules.
The Commission must deliver an approved rule by
the end of the month in which the Commission
approved the rule, unless the agency asks the
Commission to delay the delivery of the rule.
§ 150B-21.12. Procedure when Commission
objects to a permanent rule.
(a) Action. — When the Commission objects to
a permanent rule, it must send the agency that
adopted the rule a written statement of the objec-
tion and the reason for the objection. The agency
that adopted the rule must take one of the follow-
ing actions:
(1) Change the rule to satisfy the
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GENERAL STATUTES OF NORTH CAROUNA
Commission's objection and submit the
revised rule to the Commission.
(2) Submit a written response to the Com-
mission indicating that the agency has
decided not to change the rule.
An agency that is not a board or commission
must take one of these actions within 30 days after
receiving the Commission's statement of objection.
A board or commission must take one of these
actions within 30 days after receiving the
Commission's statement of objection or within 10
days after the board or commission's next regular-
ly scheduled meeting, whichever comes later.
When an agency changes a rule in response to an
objection by the Commission, the Commission
must determine whether the change satisfies the
Commission's objection. If it does, the Commis-
sion must approve the rule. If it does not, the
Commission must send the agency a written
statement of the Commission's continued objection
and the reason for the continued objection.
A rule to which the Commission has objected
remains under review by the Commission until the
agency that adopted the rule decides not to satisfy
the Commission's objection and makes a written
request to the Commission to return the rule to the
agency. When the Commission returns a rule to
which it has objected, it may send to the President
of the Senate and each member of the General
Assembly a report of its objection to the rule.
(b) Entry in Code. — When the Commission
returns a rule to which it has objected to the
agency that adopted the rule, the Commission must
notify the Codifier of Rules of its action and of the
basis of the Commission's objection. An agency
whose rule is returned may file the rule with the
Codifier of Rules. When the Codifier of Rules
enters in the North Carolina Administrative Code
a rule to which the Commission objected, the entry
must reflect the Commission's objection and must
state the standard on which the Commission based
its objection.
§ 150B-21.13. Procedure when Commission
extends period for review of permanent rule.
When the Commission extends the period for
review of a permanent rule, it must notify the
agency that adopted the rule of the extension and
the reason for the extension. After the Commis-
sion extends the period for review of a rule, it may
call a public hearing on the rule. Within 70 days
after extending the period for review of a rule, the
Commission must decide whether to approve the
rule, object to the rule, or call a public hearing on
the rule.
§ 150B-21.14. Public hearing on a rule.
The Commission may call a public hearing on a
rule when it extends the period for review of the
rule. At the request of an agency, the Commission
may call a public hearing on a rule that is not
before it for review. Calling a public hearing on
a rule not already before the Commission for
review places the rule before the Commission for
review. When the Commission decides to call a
public hearing on a rule, it must publish notice of
the public hearing in the North Carolina Register.
After a public hearing on a rule, the Commission
must approve the rule or object to the rule in
accordance with the standards and procedures in
this Part. The Commission must make its decision
of whether to approve or object to the rule within
70 days after the public hearing.
§ 150B-21.15. Declaratory judgment action
authorized when Commission objects to a per-
manent rule.
(a) Standing. — A person aggrieved by a perma-
nent rule entered in the North Carolina Adminis-
trative Code with an objection by the Commission
based on a lack of statutory authority may file an
action for declaratory judgment in Wake County
Superior Court pursuant to Article 26 of Chapter
1 of the General Statutes. In the action, the court
shall determine whether the agency exceeded its
authority in adopting the rule.
A declaratory judgment action under this section
must be filed within 90 days after the rule that is
the subject of the action is entered in the Code.
Filing a petition for rule making or a request for a
declaratory ruling with the agency that adopted the
rule is not a prerequisite to filing an action under
this section. A person who files an action for
declaratory judgment under this section must serve
a copy of the complaint on the agency that adopted
the rule being contested, the Codifier of Rules, and
the Commission.
(b) Record. — Within 10 days after a declaratory
judgment action is filed under this section, the
agency that adopted the rule that is the subject of
the action must send to the court the original or a
certified copy of the record in the Commission's
review of the rule. The record consists of the
rule, the Commission's letter of objection to the
rule, the agency's written response to the
Commission's letter, and any other relevant docu-
ments before the Commission when it decided to
object to the rule.
(c) Effect. — A rule remains in effect during
the pendency of an action for declaratory judgment
under this section unless the court suspends the
rule after finding that the agency that adopted the
rule has no substantial likelihood of prevailing in
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GENERAL STATUTES OF NORTH CAROLINA
the action.
(d) Changes. — While a rule is the subject of a
declaratory judgment action under this section, the
agency that adopted the rule may submit to the
Commission changes in the rule to satisfy the
Commission's objection. If the Commission
determines that changes submitted to it satisfy its
objection, the Commission must accept the changes
and file the revised rule with the Codifier of
Rules. The Codifier must then enter the rule in
the North Carolina Administrative Code. When
the Commission determines that changes submitted
to it satisfy its objection, the agency that submitted
the changes must notify the court of the changes
and of the Commission's action.
Part 4. Publication of Code and Register.
§ 150B-21.17. North Carolina Register.
(a) Content. — The Codifier of Rules must
publish the North Carolina Register. The North
Carolina Register must be published at least two
times a month and must contain the following:
(1) Notices of proposed adoptions of rules.
(2) Notices of receipt of a petition for
municipal incorporation, as required by
G.S. 120-165.
(3) Executive orders of the Governor.
(4) Final decision letters from the United
States Attorney General concerning
changes in laws that affect voting in a
jurisdiction subject to § 5 of the Voting
Rights Act of 1965, as required by
G.S. 120-30. 9H.
(5) Orders of the Tax Review Board issued
under G.S. 105-241.2.
(6) Other information the Codifier deter-
mines helpful to the public.
(b) Form. — When an agency publishes notice in
the North Carolina Register of the proposed text of
a new rule, the Codifier of Rules must publish the
complete text of the proposed new rule. In pub-
lishing the text of a proposed new rule, the Codifi-
er must indicate the rule is new by underlining the
proposed text of the rule.
When an agency publishes notice in the North
Carolina Register of the proposed text of an
amendment to an existing rule, the Codifier must
publish the complete text of the rule that is being
amended unless the Codifier determines that
publication of the complete text of the rule being
amended is not necessary to enable the reader to
understand the proposed amendment. In publish-
ing the text of a proposed amendment to a rule,
the Codifier must indicate deleted text with over-
strikes and added text with underlines.
When an agency publishes notice in the North
Carolina Register of the proposed repeal of an
existing rule, the Codifier must publish the com-
plete text of the rule the agency proposes to repeal
unless the Codifier determines that publication of
the complete text is impractical. In publishing the
text of a rule the agency proposes to repeal, the
Codifier must indicate the rule is to be repealed.
§ 150B-21.18. North Carolina Administrative
Code.
The Codifier of Rules must compile all rules into
a Code known as the North Carolina Administra-
tive Code. The format and indexing of the Code
must conform as nearly as practical to the format
and indexing of the North Carolina General Stat-
utes. The Codifier must publish printed copies of
the Code and may publish the Code in other
forms. The Codifier must keep the Code current
by publishing the Code in a loose-leaf format and
periodically providing new pages to be substituted
for outdated pages, by publishing the Code in
volumes and periodically publishing cumulative
supplements, or by another means. The Codifier
may authorize and license the private indexing,
marketing, sales, reproduction, and distribution of
the Code. The Codifier must keep superseded
rules.
§ 150B-21.19. Requirements for including
rule in Code.
To be acceptable for inclusion in the North
Carolina Administrative Code, a rule must:
(1) Cite the law under which the rule is
adopted.
(2) Be signed by the head of the agency or
the rule-making coordinator for the agen-
cy that adopted the rule.
(3) Be in the physical form specified by the
Codifier of Rules.
(4) Have been reviewed by the Commission,
if the rule is a permanent rule.
§ 150B-21.20. Codifier's authority to revise
form of rules.
(a) Authority. — After consulting with the
agency that adopted the rule, the Codifier of Rules
may revise the form of a rule submitted for inclu-
sion in the North Carolina Administrative Code
within 10 business days after the rule is submitted
to do one or more of the following:
(1) Rearrange the order of the rule in the
Code or the order of the subsections,
subdivisions, or other subparts of the
rule.
(2) Provide a catch line or heading for the
rule or revise the catch line or heading
of the rule.
(3) Reletter or renumber the rule or the
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subparts of the rule in accordance with
a uniform system.
(4) Rearrange definitions and lists.
(5) Make other changes in arrangement or
in form that do not change the sub-
stance of the rule and are necessary or
desirable for a clear and orderly ar-
rangement of the rule.
(b) Effect. - Revision of a rule by the Codifier
of Rules under this section does not affect the
effective date of the rule or require the agency to
readopt or resubmit the rule. When the Codifier
of Rules revises the form of a rule, the Codifier of
Rules must send the agency that adopted the rule
a copy of the revised rule. The revised rule is the
official rule.
§ 150B-21.21. Publication of rules of North
Carolina State Bar and exempt agencies.
(a) State Bar. -- The North Carolina State Bar
must submit a rule adopted or approved by it and
entered in the minutes of the North Carolina
Supreme Court to the Codifier of Rules for inclu-
sion in the North Carolina Administrative Code.
The State Bar must submit a rule within 15 days
after it is entered in the minutes of the Supreme
Court. The Codifier of Rules must compile, make
available for public inspection, and publish a rule
included in the North Carolina Administrative
Code under this subsection in the same maimer as
other rules in the Code.
(b) Exempt Agencies. — Notwithstanding G.S.
150B-1, the North Carolina Utilities Commission
must submit to the Codifier of Rules those rules of
the Utilities Commission that are published from
time to time in the publication titled "North Caroli-
na Utilities Laws and Regulations." The Utilities
Commission must submit a rule required to be
included in the Code within 15 days after it is
adopted. The Codifier of Rules must publish the
rules submitted by the Utilities Commission in the
North Carolina Administrative Code in the same
format as they are submitted.
Notwithstanding G.S. 150B-1, an agency other
than the Utilities Commission that is exempted
from this Article by that statute must submit a
temporary or permanent rule adopted by it to the
Codifier of Rules for inclusion in the North Caroli-
na Administrative Code. One of these exempt
agencies must submit a rule to the Codifier of
Rules within 15 days after it adopts the rule. The
Codifier of Rules must compile, make available for
public inspection, and publish a rule of one of
these agencies in the North Carolina Administra-
tive Code in the same manner as other rules in the
Code.
§ 150B-21.22. Effect of inclusion in Code,
Official or judicial notice can be taken of a rule
in the North Carolina Administrative Code and
shall be taken when appropriate. Codification of a
rule in the North Carolina Administrative Code is
prima facie evidence of compliance with this
Article.
§ 150B-21.23. Rule publication manual.
The Codifier of Rules must publish a manual that
sets out the form and method for publishing a
notice of rule making in the North Carolina Regis-
ter and for filing a rule in the North Carolina
Administrative Code.
§ 150B-21.24. Free copies of Register and
Code.
(a) Register. — The Codifier of Rules must
distribute copies of the North Carolina Register as
soon after publication as practical, without charge,
to the following:
(1) A person who receives a free copy of
the North Carolina Administrative
Code.
(2) Upon request, one copy to each mem-
ber of the General Assembly.
(b) Code. — The Codifier of Rules must distrib-
ute copies of the North Carolina Administrative
Code as soon after publication as practical, without
charge, to the following:
(1) One copy to the board of commission-
ers of each county, to be placed at the
county clerk of court's office or at
another place selected by the board of
commissioners.
(2) One copy to the Commission.
(3) One copy to the Clerk of the Supreme
Court and to the Clerk of the Court of
Apf>eals of North Carolina.
(4) One copy to the Supreme Court Library
and one copy to the library of the Court
of Appeals.
(5) One copy to the Administrative Office
of the Courts.
(6) One copy to the Governor.
(7) Five copies to the Legislative Services
Commission for the use of the General
Assembly.
(8) Upon request, one copy to each State
official or department to whom or to
which copies of the appellate division
reports are furnished under G.S.
7A-343.1.
(9) Five copies to the Division of State
Library of the Department of Cultural
Resources pursuant to G.S. 125-11.7.
§ 150B-21.25. Paid copies of Register and
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Code.
A person who is not entitled to a free copy of the
North Carolina Administrative Code or North
Carolina Register may obtain a copy by paying a
fee set by the Codifier of Rules. The Codifier
must set separate fees for the North Carolina
Register and the North Carolina Administrative
Code in amounts that cover publication, copying,
and mailing costs. All monies received under this
section must be credited to the General Fund.
Article 3.
Administrative Hearings.
§ 150B-22. Settlement; contested case.
It is the policy of this State that any dispute
between an agency and another person that in-
volves the person's rights, duties, or privileges,
including licensing or the levy of a monetary
penalty, should be settled through informal proce-
dures. In trying to reach a settlement through
informal procedures, the agency may not conduct
a proceeding at which sworn testimony is taken
and witnesses may be cross-examined. If the
agency and the other person do not agree to a
resolution of the dispute through informal proce-
dures, either the agency or the person may com-
mence an administrative proceeding to determine
the person's rights, duties, or privileges, at which
time the dispute becomes a "contested case. "
§ 150B-23. Commencement; assignment of
administrative law judge; hearing required;
notice; intervention.
(a) A contested case shall be commenced by
filing a petition with the Office of Administrative
Hearings and, except as provided in Article 3A of
this Chapter, shall be conducted by that Office.
The party who files the petition shall serve a copy
of the petition on all other parties and, if the
dispute concerns a license, the person who holds
the license. A party who files a petition shall file
a certificate of service together with the petition.
A petition shall be signed by a party or a represen-
tative of the party and, if filed by a party other
than an agency, shall state fects tending to estab-
lish that the agency named as the respondent has
deprived the petitioner of property, has ordered the
petitioner to pay a fine or civil penalty, or has
otherwise substantially prejudiced the petitioner's
rights and that the agency:
(1) Exceeded its authority or jurisdiction;
(2) Acted erroneously;
(3) Failed to use proper procedure;
(4) Acted arbitrarily or capriciously; or
(5) Failed to act as required by law or rule.
The parties in a contested case shall be given an
opportunity for a hearing without undue delay.
Any person aggrieved may commence a contested
case hereunder.
A local government employee, applicant for
employment, or former employee to whom Chap-
ter 126 of the General Statutes applies may com-
mence a contested case under this Article in the
same manner as any other petitioner. The cose
shall be conducted in the Office of Admini s trative
Hearing s in the s ome manner aa other conte s ted
cases under thi s Article, except that the decision of
the State Personnel Commi s sion s hall be advisory
only and not binding on the local appointing
authority, unless (1) — the employee, applicant, or
former employee has been subjected to discrimina
tion prohibited by Article 6 of Chapter 126 of the
General Statutes or (2) — applicable federal stan
dards require a binding decision. The case shall be
conducted in the same manner as other contested
cases under this Article, except that the State
Personnel Commission shall enter final decisions
only in cases in which it is found that the employ-
ee, a pplicant, or former employee has been sub-
jected to discrimination prohibited by Article 6 of
Chapter 126 of the General Statutes or in any case
where a binding decision is required by a pplicable
federal standards. In these \we cases, the State
Personnel Commission's decision shall be binding
binding on the local appointing authority. In all
other cases, the final decision shall be made by the
applicable a ppointing authority .
(al) Repealed by Session Laws 1985 (Reg.
Sess., 1986), c. 1022, s. 1(9).
(a2) An administrative law judge assigned to a
contested case may require a party to the case to
file a prehearing statement. A party's prehearing
statement must be served on all other parties to the
contested case.
(b) The parties to a contested case shall be given
a notice of hearing not less than 1 5 days before the
hearing by the Office of Administrative Hearings.
If prehearing statements have been filed in the
case, the notice shall state the date, hour, and
place of the hearing. If prehearing statements
have not been filed in the case, the notice shall
state the date, hour, place, and nature of the
hearing, shall list the particular sections of the
statutes and rules involved, and shall give a short
and plain statement of the factual allegations.
(c) Notice shall be given personally or by
certified mail. If given by certified mail, it shall
be deemed to have been given on the delivery date
appearing on the return receipt. If giving of notice
cannot be accomplished either personally or by
certified mail, notice shall then be given in the
manner provided in G.S. lA-1, Rule 4(jl).
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(d) Any person may f>etition to become a party
by filing a motion to intervene in the manner
provided in G.S. lA-1, Rule 24. In addition, any
person interested in a contested case may intervene
and participate in that proceeding to the extent
deemed appropriate by the administrative law
judge.
(e) All hearings under this Chapter shall be open
to the public. Hearings shall be conducted in an
impartial manner Hearings shall be conducted
according to the procedures set out in this Article,
except to the extent and in the particulars that
specific hearing procedures and time standards are
governed by another statute.
(f) Unless another statute or a federal statute or
regulation sets a time limitation for the filing of a
petition in contested cases against a sjjecified
agency, the general limitation for the filing of a
petition in a contested case is 60 days. The time
limitation, whether established by another statute,
federal statute, or federal regulation, or this
section, shall commence when notice is given of
the agency decision to all persons aggrieved who
are known to the agency by personal delivery or
by the placing of the notice in an official deposito-
ry of the United States Postal Service wrapped in
a wrapper addressed to the person at the latest
address given by the j>erson to the agency. The
notice shall be in writing, and shall set forth the
agency action, and shall inform the persons of the
right, the procedure, and the time limit to file a
contested case petition. When no informal settle-
ment request has been received by the agency
prior to issuance of the notice, any subsequent
informal settlement request shall not suspend the
time limitation for the filing of a petition for a
contested case hearing.
§ 150B-23.1. Mediated settlement
conferences.
(a) Purpose. — This section authorizes a media-
tion program in the Office of Administrative
Hearings in which the chief administrative law
judge may require the parties in a contested case to
attend a prehearing settlement conference conduct-
ed by a mediator The purpose of the program is
to determine whether a system of mediated settle-
ment conferences may make the operation of the
Office of Administrative Hearings more efficient,
less costly, and more satisfying to the parties.
(b) Definitions. — The following definitions
apply in this section:
(1) Mediated settlement conference. — A
conference ordered by the chief admin-
istrative law judge involving the parties
to a contested case and conducted by a
mediator prior to a contested case
hearing.
(2) Mediator — A neutral pjerson who acts
to encourage and facilitate a resolution
of a contested case but who does not
make a decision on the merits of the
contested case.
(c) Conference. — The chief administrative law
judge may order a mediated settlement conference
for all or any part of a contested case to which an
administrative law judge is assigned to preside.
All aspects of the mediated settlement conference
shall be conducted in so fer as {rossible in accor-
dance with the rules adopted by the Supreme Court
for the court-ordered mediation pilot program
under G.S. 7A-38.
(d) Attendance. — The parties to a contested
case in which a mediated settlement conference is
ordered, their attorneys, and other persons having
authority to settle the parties' claims shall attend
the settlement conference unless excused by the
presiding administrative law judge.
(e) Mediator. — The parties shall have the right
to stipulate to a mediator. Upon the failure of the
parties to agree within a time limit established by
the presiding administrative law judge, a mediator
shall be appointed by the presiding administrative
law judge.
(f) Sanctions. — Upon failure of a party or a
party's attorney to attend a mediated settlement
conference ordered under this section, the presid-
ing administrative law judge may impose any
sanction authorized by G.S. 150B-33(b)(8) or (10).
(g) Standards. — Mediators authorized to con-
duct mediated settlement conferences under this
section shall comply with the standards adopted by
the Supreme Court for the court-ordered mediation
pilot program under G.S. 7A-38.
(h) Immunity. — A mediator acting pursuant to
this section shall have judicial immunity in the
same manner and to the same extent as a judge of
the General Court of Justice.
(i) Costs. — Costs of a mediated settlement
conference shall be paid one share by the petition-
er, one share by the respondent, and an equal
share by any intervenor, unless otherwise appor-
tioned by the administrative law judge.
(j) Inadmissibility of Negotiations. — All con-
duct or communications made during a mediated
settlement conference are presumed to be made in
compromise negotiations and shall be governed by
Rule 408 of the North Carolina Rules of Evidence.
(k) Right to Hearing. — Nothing in this section
restricts the right to a contested case hearing.
§ 1 SOB- 24. Venue of hearing.
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GENERAL STATUTES OF NORTH CAROLINA
(a) The hearing of a contested case shall be
conducted:
(1) In the county in this State in which any
person whose property or rights are the
subject matter of the hearing maintains
his residence;
(2) In the county where the agency main-
tains its principal office if the property
or rights that are the subject matter of
the hearing do not affect any person or
if the subject matter of the hearing is
the property or rights of residents of
more than one county; or
(3) In any county determined by the admin-
istrative law judge in his discretion to
promote the ends of justice or better
serve the convenience of witnesses.
(b) Any person whose property or rights are the
subject matter of the hearing waives his objection
to venue by proceeding in the hearing.
§ 150B-25. Conduct of hearing; answer.
(a) If a party tails to appear in a contested case
after proper service of notice, and if no adjourn-
ment or continuance is granted, the administrative
law judge may proceed with the hearing in the
absence of the party.
(b) Repealed by Session Laws 1991, c. 35, s. 2,
effective October 1, 1991.
(c) The parties shall be given an opportunity to
present arguments on issues of law and policy and
an opportunity to present evidence on issues of
feet.
(d) A party may cross-examine any witness,
including the author of a document prepared by,
on behalf of, or for use of the agency and offered
in evidence. Any party may submit rebuttal
evidence.
§ 150B-26. Consolidation.
When contested cases involving a common
question of law or feet or multiple proceedings
involving the same or related parties are pending,
the Director of the Office of Administrative Hear-
ings may order a joint hearing of any matters at
issue in the cases, order the cases consolidated, or
make other orders to reduce costs or delay in the
proceedings.
§ 150B-27. Subpoena.
After the commencement of a contested case,
subpoenas may be issued and served in accordance
with G.S. lA-1, Rule 45. In addition to the
methods of service in G.S. lA-1, Rule 45, a State
law enforcement officer may serve a subpoena on
behalf of an agency that is a party to the contested
case by any method by which a sheriff may serve
a subpoena under that Rule. Upon a motion, the
administrative law judge may quash a subpoena if,
upon a hearing, the administrative law judge finds
that the evidence the production of which is re-
quired does not relate to a matter in issue, the
subpoena does not describe with sufficient particu-
larity the evidence the production of which is
required, or for any other reason sufficient in law
the subpoena may be quashed.
Witness fees shall be paid by the party requesting
the subfKjena to subpoenaed witnesses in accor-
dance with G.S. 7A-314. However, State officials
or employees who are subpoenaed shall not be
entitled to witness fees, but they shall receive their
normal salary and they shall not be required to
take any annual leave for the witness days. Travel
expenses of State officials or employees who are
subpoenaed shall be reimbursed as provided in
G.S. 138-6.
§ 150B-28. Depositions and discovery.
(a) A deposition may be used in lieu of other
evidence when taken in compliance with the Rules
of Civil Procedure, G.S. lA-1. Parties in contest-
ed cases may engage in discovery pursuant to the
provisions of the Rules of Civil Procedure, G.S.
lA-1.
(b) On a request for identifiable agency records,
with respect to material fects involved in a contest-
ed case, except records related solely to the inter-
nal procedures of the agency or which are exempt
from disclosure by law, an agency shall promptly
make the records available to a party.
§ 150B-29. Rules of evidence.
(a) In all contested cases, irrelevant, immaterial
and unduly repetitious evidence shall be excluded.
Except as otherwise provided, the rules of evi-
dence as applied in the trial division of the General
Court of Justice shall be followed; but, when
evidence is not reasonably available under the
rules to show relevant fects, then the most reliable
and substantial evidence available shall be admit-
ted. On the judge's own motion, an administrative
law judge may exclude evidence that is inadmissi-
ble under this section. It shall not be necessary
for a party or his attorney to object at the hearing
to evidence in order to preserve the right to object
to its consideration by the administrative law judge
in making a recommended decision, by the agency
in making a final decision, or by the court on
judicial review.
(b) Evidence in a contested case, including
records and documents, shall be offered and made
a part of the record. Factual information or
evidence not made a part of the record shall not be
considered in the determination of the case, except
as permitted under G.S. 1508-30. Documentary
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GENERAL STATUTES OF NORTH CAROUNA
evidence may be received in the form of a copy or
excerpt or may be incorporated by reference, if the
materials so incorporated are available for exami-
nation by the parties. Upon timely request, a
party shall be given an opportunity to compare the
copy with the original if available.
§ 150B-30. Official notice.
Official notice may be taken of all facts of which
judicial notice may be taken and of other facts
within the specialized knowledge of the agency.
The noticed fact and its source shall be stated and
made known to affected parties at the earliest
practicable time, and any party shall on timely
request be afforded an opportunity to dispute the
noticed feet through submission of evidence and
argument.
§ 150B-31. Stipulations.
(a) The parties in a contested case may, by a
stipulation in writing filed with the administrative
law judge, agree upon any feet involved in the
controversy, which stipulation shall be used as
evidence at the hearing and be binding on the
parties thereto. Parties should agree upon fects
when practicable.
(b) Except as otherwise provided by law, dispo-
sition may be made of a contested case by stipula-
tion, agreed settlement, consent order, waiver,
defeult, or other method agreed upon by the
parties.
§ 150B-32. Designation of administrative law
judge.
(a) The Director of the Office of Administrative
Hearings shall assign himself or another adminis-
trative law judge to preside over a contested case.
(al) Repealed by Session Laws 1985 (Reg.
Sess., 1986), c. 1022, s. 1 (15), effective July 15,
1986.
(b) On the filing in good feith by a party of a
timely and sufficient affidavit of personal bias or
disqualification of an administrative law judge, the
administrative law judge shall determine the matter
as a part of the record in the case, and this deter-
mination shall be subject to judicial review at the
conclusion of the proceeding.
(c) When an administrative law judge is disqual-
ified or it is impracticable for him to continue the
hearing, the Director shall assign another adminis-
trative law judge to continue with the case unless
it is shown that substantial prejudice to any party
will result, in which event a new hearing shall be
held or the case dismissed without prejudice.
§ 150B-33. Powers of administrative law
judge,
(a) An administrative law judge shall stay any
contested case under this Article on motion of an
agency which is a party to the contested case, if
the agency shows by supporting affidavits that it is
engaged in other litigation or administrative pro-
ceedings, by whatever name called, with or before
a federal agency, and this other litigation or
administrative proceedings will determine the
position, in whole or in part, of the agency in the
contested case. At the conclusion of the other
litigation or administrative proceedings, the con-
tested case shall proceed and be determined as
expeditiously as possible,
(b) An administrative law judge may:
(1) Administer oaths and affirmations;
(2) Sign, issue, and rule on subpoenas in
accordance with G.S. 150B-27 and
G.S. lA-1, Rule 45;
(3) Provide for the taking of testimony h^
deposition and rule on all objections to
discovery in accordance with G.S.
lA-1, the Rules of Civil Procedure;
(3a) Rule on all prehearing motions that are
authorized by G.S. lA-1, the Rules of
Civil Procedure;
(4) Regulate the course of the hearings,
including discovery, set the time and
place for continued hearings, and fix
the time for filing of briefs and other
documents;
(5) Direct the parties to appear and confer
to consider simplification of the issues
by consent of the parties;
(6) Stay the contested action by the agency
pending the outcome of the case, upon
such terms as he deems proper, and
subject to the provisions of G.S. lA-1,
Rule 65;
(7) Determine whether the hearing shall be
recorded by a stenographer or by an
electronic device; and
(8) Enter an order returnable in the General
Court of Justice, Superior Court Divi-
sion, to show cause why the person
should not be held in contempt. The
Court shall have the power to impose
punishment as for contempt for any act
which would constitute direct or indi-
rect contempt if the act occurred in an
action pending in Sujjerior Court.
(9) Determine that a rule as applied in a
particular case is void because (1) it is
not within the statutory authority of the
agency, (2) is not clear and unambigu-
ous to persons it is intended to direct,
guide, or assist, or (3) is not reasonably
necessary to enable the agency to fulfill
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a duty delegated to it by the General
Assembly.
(10) Impose the sanctions provided for in
G.S. lA-1 or Chapter 3 of Title 26 of
the North Carolina Administrative Code
for noncompliance with applicable
procedural rules.
§ 150B-34. Recommended decision or order
of administrative law judge.
(a) Except as provided in G.S. 150B-36(c), in
each contested case the administrative law judge
shall make a recommended decision or order that
contains findings of feet and conclusions of law.
(b) Repealed by Session Laws 1991, c. 35, s. 6,
effective October 1, 1991.
150B-35. No ex parte communication;
exceptions.
Unless required for disposition of an ex parte
matter authorized by law, neither the administra-
tive law judge assigned to a contested case nor a
member or employee of the agency making a final
decision in the case may communicate, directly or
indirectly, in connection with any issue of feet, or
question of law, with any person or party or his
representotive, except on notice and opportunity
for all parties to participate.
§ 150B-36. Final decision.
(a) Before the agency makes a final decision, it
shall give each party an opportunity to file excep-
tions to the decision recommended by the adminis-
trative law judge, and to present written arguments
to those in the agency who will make the final
decision or order. If a party files in good faith a
timely and sufficient affidavit of personal bias or
other reason for disqualification of a member of
the agency making the final decision, the agency
shall determine the matter as a part of the record
in the case, and the determination is subject to
judicial review at the conclusion of the case.
(b) A final decision or order in a contested case
shall be made by the agency in writing after
review of the official record as defined in G.S.
150B-37(a) and shall include findings of fact and
conclusions of law. If the agency does not adopt
the administrative law judge's recommended
decision as its final decision, the agency shall state
in its decision or order the specific reasons why it
did not adopt the administrative law judge's rec-
ommended decision. The agency may consider
only the official record prepared pursuant to G.S.
150B-37 in making a final decision or order, and
the final decision or order shall be supported by
substantial evidence admissible under G.S.
150B-29(a), 150B-30, or 150B-31. A copy of the
decision or order shall be served upon each party
personally or by certified mail addressed to the
party at the latest address given by the party to the
agency, and a copy shall be furnished to his
attorney of record and the Office of Administrative
Hearings.
(c) The following decisions made by administra-
tive law judges in contested cases are final deci-
sions:
(1) A determination that the Office of
Administrative Hearings lacks jurisdic-
tion.
(2) An order entered pursuant to the au-
thority in G.S. 7A-759(e).
(3) An order entered pursuant to a written
prehearing motion that either dismisses
the contested case for feilure of the
petitioner to prosecute or grants the
relief requested when a party does not
comply with procedural requirements.
(4) An order entered pursuant to a
prehearing motion to dismiss the con-
tested case in accordance with G.S.
lA-1, Rule 12(b) when the order dis-
poses of all issues in the contested case.
§ 150B-37. Official record.
(a) In a contested case, the Office of Adminis-
trative Hearings shall prepare an official record of
the case that includes:
(1) Notices, pleadings, motions, and inter-
mediate rulings;
(2) Questions and offers of proof, objec-
tions, and rulings thereon;
(3) Evidence presented;
(4) Matters officially noticed, except mat-
ters so obvious that a statement of them
would serve no useful purpose; and
(5) Repealed by Session Laws 1987, c.
878, s. 25, eff'ective August 14, 1987.
(6) The administrative law judge's recom-
mended decision or order.
(b) Proceedings at which oral evidence is
presented shall be recorded, but need not be
transcribed unless requested by a party. Each
party shall bear the cost of the transcript or part
thereof or copy of said transcript or part thereof
which said party requests, and said transcript or
part thereof shall be added to the official record as
an exhibit.
(c) The Office of Administrative Hearings shall
forward a copy of the official record to the agency
making the final decision and shall forward a copy
of the recommended decision to each party.
Article 3A.
Other Administrative Hearings.
§ 150B-38. Scope; hearing required; notice;
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GENERAL STATUTES OF NORTH CAROLINA
venue.
(a) The provisions of this Article shall apply to
the following agencies:
(1) Occupational licensing agencies;
(2) The State Banking Commission, the
Commissioner of Banks, the Savings
Institutions Division of the Department
of Commerce, and the Credit Union
Division of the Department of Com-
merce; and
(3) The Department of Insurance and the
Commissioner of Insurance.
(b) Prior to any agency action in a contested
case, the agency shall give the parties in the case
an opportunity for a hearing without undue delay
and notice not less than 15 days before the hear-
ing. Notice to the parties shall include:
(1) A statement of the date, hour, place,
and nature of the hearing;
(2) A reference to the particular sections of
the statutes and rules involved; and
(3) A short and plain statement of the fects
alleged.
(c) Notice shall be given personally or by
certified mail. If given by certified mail, notice
shall be deemed to have been given on the delivery
date appearing on the return receipt. If notice
cannot be given personally or by certified mail,
then notice shall be given in the manner provided
in G.S. lA-1, Rule 4(jl).
(d) A party who has been served with a notice
of hearing may file a written response with the
agency. If a written response is filed, a copy of
the response must be mailed to all other parties not
less than 10 days before the date set for the hear-
ing.
(e) Ail hearings conducted under this Article
shall be open to the public. A hearing conducted
by the agency shall be held in the county where
the agency maintains its principal office. A
hearing conducted for the agency by an administra-
tive law judge requested under G.S. 150B-40 shall
be held in a county in this State where any person
whose property or rights are the subject matter of
the hearing resides. If a different venue would
promote the ends of justice or better serve the
convenience of witnesses, the agency or the admin-
istrative law judge may designate another county.
A person whose property or rights are the subject
matter of the hearing waives his objection to venue
if he proceeds in the hearing.
(f) Any person may jjetition to become a party
by filing with the agency or hearing officer a
motion to intervene in the manner provided by
G.S. lA-1, Rule 24. In addition, any person
interested in a contested case under this Article
may intervene and participate to the extent deemed
appropriate by the agency hearing officer.
(g) When contested cases involving a common
question of law or fact or multiple proceedings
involving the same or related parties are pending
before an agency, the agency may order a joint
hearing of any matters at issue in the cases, order
the cases consolidated, or make other orders to
reduce costs or delay in the proceedings.
(h) Every agency shall adopt rules governing the
conduct of hearings that are consistent with the
provisions of this Article.
§ 150B-39. Depositions; discovery; subpoe-
nas.
(a) A dep)osition may be used in lieu of other
evidence when taken in compliance with the Rules
of Civil Procedure, G.S. lA-1. Parties in a
contested case may engage in discovery pursuant
to the provisions of the Rules of Civil Procedure,
G.S. lA-1.
(b) Upon a request for an identifiable agency
record involving a material feet in a contested
case, the agency shall promptly provide the record
to a party, unless the record relates solely to the
agency's internal procedures or is exempt from
disclosure by law.
(c) In preparation for, or in the conduct of, a
contested case subpoenas may be issued and served
in accordance with G.S. IA-1, Rule 45. Upon a
motion, the agency may quash a subpoena if, upon
a hearing, the agency finds that the evidence, the
production of which is required, does not relate to
a matter in issue, the subpoena does not describe
with sufficient particularity the evidence the
production of which is required, or for any other
reason sufScient in law the subpoena may be
quashed. Witness fees shall be paid by the party
requesting the subpoena to subpoenaed witnesses
in accordance with G.S. 7A-314. However, State
officials or employees who are subpoenaed shall
not be entitled to any witness fees, but they shall
receive their normal salary and they shall not be
required to take any annual leave for the witness
days. Travel expenses of State officials or em-
ployees who are subpoenaed shall be reimbursed
as provided in G.S. 138-6.
§ 150B-40. Conduct of hearing; presiding
officer; ex parte communication.
(a) Hearings shall be conducted in a fair and
impartial manner. At the hearing, the agency and
the parties shall be given an opportunity to present
evidence on issues of feet, examine and
cross-examine witnesses, including the author of a
document prepared by, on behalf of or for the use
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of the agency and offered into evidence, submit
rebuttal evidence, and present arguments on issues
of law or policy.
If a party foils to appear in a contested case after
he has been given proper notice, the agency may
continue the hearing or proceed with the hearing
and make its decision in the absence of the party.
(b) Except as provided under subsection (e) of
this section, hearings under this Article shall be
conducted by a majority of the agency. An agency
shall designate one or more of its members to
preside at the hearing. If a party files in good
faith a timely and sufficient affidavit of the person-
al bias or other reason for disqualification of any
member of the agency, the agency shall determine
the matter as a part of the record in the case, and
its determination shall be subject to judicial review
at the conclusion of the proceeding. If a presiding
officer is disqualified or it is impracticable for him
to continue the hearing, another presiding officer
shall be assigned to continue with the case, except
that if assignment of a new presiding officer will
cause substantial prejudice to any party, a new
hearing shall be held or the case dismissed without
prejudice.
(c) The presiding officer may:
(1) Administer oaths and affirmations;
(2) Sign and issue subpoenas in the name
of the agency, requiring attendance and
giving of testimony by witnesses and
the production of books, papers, and
other documentary evidence;
(3) Provide for the taking of testimony by
deposition;
(4) Regulate the course of the hearings, set
the time and place for continued hear-
ings, and fix the time for filing of
briefs and other documents;
(5) Direct the parties to appear and confer
to consider simplification of the issues
by consent of the parties; and
(6) Apply to any judge of the superior
court resident in the district or presid-
ing at a term of court in the county
where a hearing is pending for an order
to show cause why any person should
not be held in contempt of the agency
and its processes, and the court shall
have the power to impose punishment
as for contempt for acts which would
constitute direct or indirect contempt if
the acts occurred in an action pending
in superior court.
(d) Unless required for disposition of an ex
parte matter authorized by law, a member of an
agency assigned to make a decision or to make
findings of fact and conclusions of law in a con-
tested case under this Article shall not communi-
cate, directly or indirectly, in connection with any
issue of fact or question of law, with any person or
party or his representative, except on notice and
opportunity for all parties to participate. This
prohibition begins at the time of the notice of
hearing. An agency member may communicate
with other members of the agency and may have
the aid and advice of the agency staff other than
the staff which has been or is engaged in investi-
gating or prosecuting fimctions in cormection with
the case under consideration or a factually-related
case. This section does not apply to an agency
employee or party representative with professional
training in accounting, actuarial science, econom-
ics or financial analysis insofar as the case in-
volves financial practices or conditions.
(e) When a majority of an agency is unable or
elects not to hear a contested case, the agency shall
apply to the Director of the Office of Administra-
tive Hearings for the designation of an administra-
tive law judge to preside at the hearing of a con-
tested case under this Article. Upon receipt of the
application, the Director shall, without undue
delay, assign an administrative law judge to hear
the case.
The provisions of this Article, rather than the
provisions of Article 3, shall govern a contested
case in which the agency requests an administra-
tive law judge from the Office of Administrative
Hearings.
The administrative law judge assigned to hear a
contested case under this Article shall sit in place
of the agency and shall have the authority of the
presiding officer in a contested case under this
Article. The administrative law judge shall make
a proposal for decision, which shall contain pro-
posed findings of fact and proposed conclusions of
law.
An administrative law judge shall stay any
contested case under this Article on motion of an
agency which is a party to the contested case, if
the agency shows by supporting affidavits that it is
engaged in other litigation or administrative pro-
ceedings, by whatever name called, with or before
a federal agency, and this other litigation or
administrative proceedings will determine the
position, in whole or in part, of the agency in the
contested case. At the conclusion of the other
litigation or administrative proceedings, the con-
tested case shall proceed and be determined as
expeditiously as possible.
The agency may make its final decision only
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after the administrative law judge's prop)osal for
decision is served on the parties, and an opportuni-
ty is given to each party to file exceptions and
proposed findings of feet and to present oral and
written arguments to the agency.
§ 150B-41. Evidence; stipulations; oflicial
notice.
(a) In all contested cases, irrelevant, immaterial,
and unduly repetitious evidence shall be excluded.
Except as otherwise provided, the rules of evi-
dence as applied in the trial division of the General
Court of Justice shall be followed; but, when
evidence is not reasonably available under such
rules to show relevant facts, they may be shown
by the most reliable and substantial evidence
available. It shall not be necessary for a party or
his attorney to object to evidence at the hearing in
order to preserve the right to object to its consider-
ation by the agency in reaching its decision, or by
the court of judicial review.
(b) Evidence in a contested case, including
records and documents shall be offered and made
a part of the record. Other fectual information or
evidence shall not be considered in determination
of the case, except as permitted under G.S.
150B-30. Documentary evidence may be received
in the form of a copy or excerpt or may be incor-
porated by reference, if the materials so incorpo-
rated are available for examination by the parties.
Upon timely request, a party shall be given an
opportunity to compare the copy with the original
if available.
(c) The parties in a contested case under this
Article by a stipulation in writing filed with the
agency may agree upon any feet involved in the
controversy, which stipulation shall be used as
evidence at the hearing and be binding on the
parties thereto. Parties should agree upon fects
when practicable. Except as otherwise provided
by law, disposition may be made of a contested
case by stipulation, agreed settlement, consent
order, waiver, defeult, or other method agreed
upon by the parties.
(d) Official notice may be taken of all fects of
which judicial notice may be taken and of other
fects within the specialized knowledge of the
agency. TTie noticed feet and its source shall be
stated and made known to affected parties at the
earliest practicable time, and any party shall on
timely request be afforded an opportunity to
dispute the noticed feet through submission of
evidence and argument. An agency may use its
experience, technical competence, and specialized
knowledge in the evaluation of evidence presented
to it.
§ 150B-42. Final agency decision; official
record.
(a) After compliance with the provisions of G.S.
150B-40(e), if applicable, and review of the
official record, as defined in subsection (b) of this
section, an agency shall make a written final
decision or order in a contested case. The deci-
sion or order shall include findings of feet and
conclusions of law. Findings of feet shall be based
exclusively on the evidence and on matters offi-
cially noticed. Findings of feet, if set forth in
statutory language, shall be accompanied by a
concise and explicit statement of the underlying
fects supporting them. A decision or order shall
not be made except upon consideration of the
record as a whole or such portion thereof as may
be cited by any party to the proceeding and shall
be supported by substantial evidence admissible
under G.S. 150B-41. A copy of the decision or
order shall be served upon each party personally
or by certified mail addiiessed to the party at the
latest address given by the party to the agency and
a copy shall be furnished to his attorney of record.
(b) An agency shall prepare an official record of
a hearing that shall include:
(1) Notices, pleadings, motions, and inter-
mediate rulings;
(2) Questions and offers of proof, objec-
tions, and rulings thereon;
(3) Evidence presented;
(4) Matters officially noticed, except mat-
ters so obvious that a stetement of them
would serve no useful purpose;
(5) Proposed findings and exceptions; and
(6) Any decision, opinion, order, or report
by the officer presiding at the hearing
and by the agency.
(c) Proceedings at which oral evidence is pre-
sented shall be recorded, but need not be tran-
scribed unless requested by a party. Each party
shall bear the cost of the transcript or part thereof
or copy of said transcript or part thereof which
said party requests.
Article 4.
Judicial Review.
§ 150B-43. Right to judicial review.
Any person who is aggrieved by the final deci-
sion in a contested case, and who has exhausted all
administrative remedies made available to him by
sfetute or agency rule, is entitled to judicial review
of the decision under this Article, unless adequate
procedure for judicial review is provided by
another statute, in which case the review shall be
under such other statute. Nothing in this Chapter
shall prevent any person from invoking any judi-
799
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GENERAL STATUTES OF NORTH CAROLINA
cial remedy available to him under the law to test
the validity of any administrative action not made
reviewable under this Article.
§ 150B-44. Right to judicial intervention
when decision unreasonably delayed.
Unreasonable delay on the part of any agency or
administrative law judge in taking any required
action shall be justification for any person whose
rights, duties, or privileges are adversely affected
by such delay to seek a court order compelling
action by the agency or administrative law judge.
An agency that is subject to Article 3 of this
Chapter and is not a board or commission has 90
days from the day it receives the official record in
a contested case from the Office of Administrative
Hearings to make a final decision in the case.
This time limit may be extended by the parties or,
for good cause shown, by the agency for an
additional period of up to 90 days. An agency that
is subject to Article 3 of this Chapter and is a
board or commission has 90 days from the day it
receives the official record in a contested case
firom the Office of Administrative Hearings or 90
days after its next regularly scheduled meeting,
whichever is longer, to make a final decision in
the case. This time limit may be extended by the
parties or, for good cause shown, by the agency
for an additional period of up to 90 days. If an
agency subject to Article 3 of this Chapter has not
made a final decision within these time limits, the
agency is considered to have adopted the adminis-
trative law judge's recommended decision as the
agency's final decision. Failure of an agency
subject to Article 3A of this Chapter to make a
final decision within 1 80 days of the close of the
contested case hearing is justification for a person
whose rights, duties, or privileges are adversely
affected by the delay to seek a court order compel-
ling action by the agency or, if the case was heard
by an administrative law judge, by the administra-
tive law judge.
§ 150B-45. Procedure for seeking review;
waiver.
To obtain judicial review of a final decision
under this Article, the pierson seeking review must
file a petition in the Superior Court of Wake
County or in the superior court of the county
where the person resides.
The person seeking review must file the petition
within 30 days after the person is served with a
written copy of the decision. A p)erson who fails
to file a petition within the required time waives
the right to judicial review under this Article. For
good cause shown, however, the superior court
may accept an untimely petition.
§ 150B-46. Contents of petition; copies served
on all parties; intervention.
The petition shall explicitly state what exceptions
are taken to the decision or procedure and what
relief the petitioner seeks. Within 10 days after
the petition is filed with the court, the party
seeking the review shall serve copies of the f)eti-
tion by personal service or by certified mail upon
all who were parties of record to the administrative
proceedings. Names and addresses of such parties
shall be furnished to the petitioner by the agency
upon request. Any party to the administrative
proceeding is a party to the review proceedings
unless the party withdraws by notifying the court
of the withdrawal and serving the other parties
with notice of the withdrawal . Other parties to the
proceeding may file a response to the petition
within 30 days of service. Parties, including
agencies, may state exceptions to the decision or
procedure and what relief is sought in the re-
sponse.
Any person aggrieved may p)etition to become a
party by filing a motion to intervene as provided in
G.S. lA-1, Rule 24.
§ 150B-47. Records filed with clerk of superi-
or court; contents of records; costs.
Within 30 days after receipt of the copy of the
petition for review, or within such additional time
as the court may allow, the agency that made the
final decision in the contested case shall transmit
to the reviewing court the original or a certified
copy of the official record in the contested case
under review together with: (i) any exceptions,
proposed findings of fact, or written arguments
submitted to the agency in accordance with G.S.
150B-36(a); and (ii) the agency's final decision or
order. With the permission of the court, the
record may be shortened by stipulation of all
parties to the review proceedings. Any party
unreasonably refusing to stipulate to limit the
record may be taxed by the court for such addi-
tional costs as may be occasioned by the refusal.
The court may require or permit subsequent
corrections or additions to the record when deemed
desirable.
§ 150B-48. Stay of decision.
At any time before or during the review proceed-
ing, the person aggrieved may apply to the review-
ing court for an order staying the operation of the
administrative decision pending the outcome of the
review. The court may grant or deny the stay in
its discretion upon such terms as it deems proper
and subject to the provisions of G.S. lA-1, Rule
65.
§ 150B-49. New evidence.
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GENERAL STATUTES OF NORTH CAROLINA
An aggrieved person who files a petition in the
superior court may apply to the court to present
additional evidence. If the court is satisfied that
the evidence is material to the issues, is not merely
cumulative, and could not reasonably have been
presented at the administrative hearing, the court
may remand the case so that additional evidence
can be taken. If an administrative law judge did
not make a recommended decision in the case, the
court shall remand the case to the agency that
conducted the administrative hearing. After
hearing the evidence, the agency may affirm or
modify its previous findings of feet and final
decision. If an administrative law judge made a
recommended decision in the case, the court shall
remand the case to the administrative law judge.
After hearing the evidence, the administrative law
judge may aflirm or modify his previous findings
of fact and recommended decision. The administra-
tive law judge shall forward a copy of his decision
to the agency that made the final decision, which
in turn may affirm or modify its previous findings
of fact and final decision. The additional evidence
and any affirmation or modification of a recom-
mended decision or final decision shall be made
part of the official record.
§ 150B-50. Review by superior court without
jury.
The review by a superior court of agency deci-
sions under this Chapter shall be conducted by the
court without a jury.
§ 150B-51. Scope of review.
(a) Initial Determination in Certain Cases. In
reviewing a final decision in a contested case in
which an administrative law judge made a recom-
mended decision, the court shall make two initial
determinations. First, the court shall determine
whether the agency heard new evidence after
receiving the recommended decision. If the court
determines that the agency heard new evidence,
the court shall reverse the decision or remand the
case to the agency to enter a decision in accor-
dance with the evidence in the official record.
Second, if the agency did not adopt the recom-
mended decision, the court shall determine wheth-
er the agency's decision states the sjjecific reasons
why the agency did not adopt the recommended
decision. If the court determines that the agency
did not state specific reasons why it did not adopt
a recommended decision, the court shall reverse
the decision or remand the case to the agency to
enter the specific reasons.
(b) Standard of Review. After making the
determinations, if any, required by subsection (a),
the court reviewing a final decision may affirm the
decision of the agency or remand the case for
further proceedings. It may also reverse or modi-
fy the agency's decision if the substantial rights of
the petitioners may have been prejudiced because
the agency's findings, inferences, conclusions, or
decisions are:
(1)
(2)
(3)
(4)
(5)
(6)
In violation of constitutional provisions;
In excess of the statutory authority or
jurisdiction of the agency;
Made upon unlawful procedure;
Affected by other error of law;
Unsupported by substantial evidence
admissible under G.S. 150B-29(a),
1503-30, or 150B-3I in view of the
entire record as submitted; or
Arbitrary or capricious.
§ 150B-52. Appeal; stay of court's decision.
A party to a review proceeding in a superior
court may appeal to the appellate division from the
final judgment of the superior court as provided in
G.S. 7A-27. Pending the outcome of an appeal,
an appealing party may apply to the court that
issued the judgment under apf>eal for a stay of that
judgment or a stay of the administrative decision
that is the subject of the appeal, as appropriate.
Article 5.
Publication of Administrative Rules.
Repealed.
801
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September 1, 1994
PROPOSED RULES
TITLE 10 - DEPARTMENT OF
HUMAN RESOURCES
JSotice is hereby given in accordance with G.S.
150B-21.2 that the Social Services Convnission
intends to amend rule cited as 10 NCAC 42R
.0201.
1 he proposed effective date of this action is
December 1, 1994.
1 he public hearing will be conducted at 10:00
a.m. on October 4, 1994 at the Albemarle Build-
ing, Room 844, 325 North Salisbury Street, Ra-
leigh, NC 27603-5905.
Mxeason for Proposed Action: lb increase the
maximum rate of reimbursement for the purchase
of adult day care services through the State Adult
Day Care Fund so that the maximum rate is
consistent within the Department of Human Re-
sources.
Lyomment Procedures: Comments may be pre-
sented in writing anytime before or at the public
hearing or orally at the hearing. Time limits for
oral remarks may be imposed by the Commission
Chairman. Any person may request copies of this
Rule by calling or writing to Shamese Ransome,
Division of Social Services, 325 N. Salisbury
Street, Raleigh, NC 27603-5905, (919) 733-3055.
tLditor's Note: This Rule was filed as a tempo-
rary rule effective July 27, 1994 for a period of
180 days or until the permanent rule becomes
effective, whichever is sooner.
CHAPTER 42
INDIVIDUAL AND FAMILY
SUPPORT
SUBCHAPTER 42R - ADULT DAY CARE -
STATE FUND
SECTION .0200 - STATE ADULT DAY
CARE FUND
.0201 NATURE AND PURPOSE OF STATE
ADULT DAY CARE FUND
(a) The State Adult Day Care Fund is used for
adult day care services provided through county
departments of social services for the purpose of
enabling people to remain in or return to their own
homes.
(b) The fund is used to increase state financial
participation in the costs of this service.
(c) Maximum rates havo boon e s tablish e d by th e
North Carolina Social S e rvic e s Commission for th e
purohooo of adult day oar e s e p i io e s und e r a v e ndor
agr e em e nt. — Information r e garding maximum rate s
is contain e d in policy mat e rial of th e North Caroli
na Division of Social S e rvic e s and is available in
aooordono e with 10 NCAC 35A .0003. The
maximum rate for the purchase of adult day care
services under a vendor agreement shall not
exceed five hundred dollars ($500.00) per month.
of which four hundred and fifty five dollars
($455.00) shall be for the purchase of daily care
and forty five dollars ($45.00) shall be for
transportation.
Statutory Authority G.S. 1438-153; 1993 S.L., c.
591, s. 2(a).
TITLE 12 - DEPARTMENT OF JUSTICE
ISotice is hereby given in accordance with G.S.
150B-21.2 that the N. C Private Protective Servic-
es Board intends to amend rules cited as 12 NCAC
7D .0202, .0205 and adopt 7D .0112.
Ihe proposed effective date of this action is
December 1, 1994.
1 he public hearing will be conducted at 2:00
p.m. on September 16, 1994 at the State Bureau of
Investigation, Conference Room, 3320 Old Gamer
Road, Raleigh, N C 27626-0500.
Keason for Proposed Action:
12 NCAC 7D .0112 - The rule requires a licensee
to file a report with the Board if a licensee or
registrant discharges a firearm while engaged in
the private protective services profession.
12 NCAC 7D .0202 - Sets a specific licensing fee
of $50. 00 for a special limited guard and patrol
license.
12 NCAC 7D .0205 - Clarify language in the rule
to refer to 'Company " instead of "Corporate " and
to specifically exempt a sole proprietorship that is
owned and operated by an individual licensee.
Lyomment Procedures: Interested persons may
present their views either orally or in writing at
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September 1, 1994
802
PROPOSED RULES
the hearing. The Record of Hearing will be open
for receipt of written comments through October 3,
1994. Written comments must be delivered to the
Private Protective Services Board, 3320 Old
Gamer Road, Raleigh. N. C. 27627-0500.
CHAPTER 7 - PRIVATE
PROTECTIVE SERVICES
SUBCHAPTER 7D - PRIVATE
PROTECTIVE SERVICES BOARD
SECTION .0100 - ORGANIZATION
AND GENERAL PROVISIONS
.0112 REPORTING REQUIREMENTS
FOR THE DISCHARGE OF
FIREARMS
If a licensee or registrant discharges a firearm
while engaged in the private protective services
business, the licensee shall notify the Board either
in person or by telephone no later than the first
business day following the incident. The licensee
shall also file a written report to the Board within
five working days of the incident. In the report.
the licensee shall state the name of the individual
who discharged the firearm, the type of weapon
discharged, the location of the incident, the law
enforcement agency investigating the incident, the
events leading to the discharge of the firearm, and
any bodily injuries occurring from the incident.
This Rule shall not be construed to app ly to a
weapon that is discharged during a training course
that has been a pproved by the Board.
Statutory Authority G. S. 74C-5.
SECTION .0200 - LICENSES:
TRAINEE PERMITS
.0202 FEES FOR LICENSES
AND TRAINEE PERMITS
(a) Application, license and trainee permit fees
are as follows:
(1) one hundred and fifty dollars ($150.00)
non-refundable application fee;
(2) two hundred dollars ($200.00) annual
fee for a new or renewal license;
(3) two hundred dollars ($200.00) annual
trainee permit fee;
(4) fifty dollars ($50.00) new or renewal
fee for each license in addition to the
basic license;
(5) twenty five dollars ($25.00) duplicate
license fee;
(6) one hundred dollars ($100.00) late
renewal fee in addition to the renewal
fee;
(7) one hundred dollars ($100.00) tempo-
rary license fee; Bsd
(8) fifty dollars ($50.00) branch office
license fe©r i and
(9} fifty dollars ($50.00) special limited
guard and patrol licensee fee.
(b) Fees shall be paid in the form of a check or
money order made payable to the Private Protec-
tive Services Board.
Statutory Authority G. S. 74C-9.
.0205 COMPANY BUSINESS LICENSE
(a) Any firm, association, or corporation re-
quired to be licensed pursuant to G.S. 74C-2(a)
shall submit an application for a oorpomte compa-
ny business license on a form provided by the
Board. Only a sole proprietorship which is owned
and operated by an individual licensee shall be
exempt from this Rule. This application for
license shall call for such information as the firm,
association, or corporation name; the address of its
principal office within the State; any past convic-
tion for criminal offenses of any oorpwrnt e compa-
ny director, or officer; information concerning the
past revocation, suspension or denial of a business
or professional license to any director, or officer;
a list of all directors and officers of the firm,
association, or corporation; a list of all persons,
firms, associations, corporations or other entities
owning ten percent or more of the outstanding
shares of any class of stock; and the name and
address of the qualifying agent.
(b) In addition to the items required in Para-
graph (a) of this Rule, a foreign an out-of-state
oorpomtion company shall further qualify by filing
with its application for a license, a copy of its
certificate of authority to transact business in this
state issued by the North Carolina Secretary of
State in accordance with G.S. 55-131 and a con-
sent to service of process and pleadings which
shall be authenticated by its corporate company
seal and accompanied by a duly certified copy of
the resolution of the board of directors authorizing
the proper officer or officers to execute said
consent.
(c) After filing a completed written application
with the Board, the Board shall conduct a back-
ground investigation to ascertain if the qualifying
agent is in a management position. The Board
shall also determine if the directors, or officers
have the requisite good moral character as defined
803
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NORTH CAROLINA REGISTER
September 1, 1994
PROPOSED RULES
in G.S. 74C-8(d)(2). It shall be prima fecie
evidence of good moral character if a director or
officer has not been convicted by any local, State,
federal, or military court of any crime involving
the use, carrying, or possession of a firearm;
conviction of any crime involving the use, posses-
sion, sale, manufecture, distribution, or transporta-
tion of a controlled substance, drug, narcotic, or
alcoholic beverage; conviction of a crime involving
assault or an act of violence; conviction of a crime
involving breaking or entering, burglary, larceny,
or any offense involving moral turpitude; or does
not have a history of addiction to alcohol or a
narcotic drug; provided that, for purposes of this
Rule, "conviction" means and includes the entry of
a plea of guilty or no contest or a verdict rendered
in open court by a judge or jury.
(d) Upon satisfactory completion of the back-
ground investigation, a oorpomt e company busi-
ness license may be issued. This license shall be
conspicuously displayed at the principle place of
business within the State of North Carolina.
(e) The oorpomt e company business license shall
be issued only to the oorpo ration business entity
and shall not be construed to extend to the licens-
ing of its officers and employees.
(f) The issuance of the oorpomte company
business license is issued to the firm, association,
or corporation in addition to the license issued to
the qualifying agent. Therefore, the qualifying
agent for the firm, association, or corporation
which has been issued the oorpomt e company
business license shall be responsible for assuring
compliance with G.S. 74C.
Statutory Authority G.S. 74C-2(a); 74C-5.
Iiotice is hereby given in accordance with G.S.
150B-21.2 that the N. C. Alarm Systems Licensing
Board intends to amend rule cited as 12 NCAC 11
.0209.
1 he proposed effective date of this action is
December 1, 1994.
Ihe public hearing will be conducted at 2:00
p.m. on September 16, 1994 at the State Bureau of
Investigation, Conference Room, 3320 Old Gamer
Road, Raleigh, N. C. 27626-0500.
Mxeasonfor Proposed Action: Clarify language in
the rule to specifically exempt a sole proprietorship
that is owned and operated by the licensee.
(comment Procedures: Interested persons may
present their views either orally or in writing at
the hearing. The Record of Hearing will be open
for receipt of written comments through October 3,
1994. Written comments must be delivered to the
Private Protective Services Board, 3320 Old
Gamer Road, Raleigh, N.C 27627-0500.
CHAPTER 11 - N.C ALARM
SYSTEMS LICENSING BOARD
SECTION .0200 - PROVISIONS
FOR LICENSEES
.0209 COMPANY BUSINESS LICENSE
(a) Any firm, association, or corporation re-
quired to be licensed pursuant to G.S. 74D-2(a)
shall submit an application for a oorpomte compa-
ny business license on a form provided by the
Board. A sole proprietorship that is owned and
operated by an individual holding a current alarm
systems business license shall be exempt from this
Rule. This application for license shall call for
such information as the firm, association, or
corporation name; the address of its principal
office within the State; any past conviction for
criminal offenses of any oorpomte company direc-
tor or officer; information concerning the past
revocation, suspension or denial of a business or
professional license to any director or officer; a
list of all directors and officers of the firm, associ-
ation, or corporation; a list of all persons, firms,
associations, corporations or other entities owning
10 [jercent or more of the outstanding shares of
any class of stock; and the name and address of
the qualifying agent.
(b) In addition to the items required in Para-
graph (a) of this Rule, a foreign an out-of-state
oorpomtion company shall further qualify by filing
with its application for a license, a copy of its
certificate of authority to transact business in this
state issued by the North Carolina Secretary of
State in accordance with G.S. 55-131 and a con-
sent to service of process and pleadings which
shall be authenticated by its oorpomte company
seal and accompanied by a duly certified copy of
the resolution of the board of directors authorizing
the proper officer or officers to execute said consent.
(c) After filing a completed written application
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September 1, 1994
804
PROPOSED RULES
with the Board, the Board shall conduct a back-
ground investigation to ascertain if the qualifying
agent is in a management position. TTie Board
shall also determine if the directors or officers
have the requisite good moral character as defined
in G.S. 74D-6(3). It shall be prima facie evidence
of good moral character if a director or officer has
not been convicted by any local. State, federal, or
military court of any crime involving the use,
carrying, or possession of a firearm; conviction of
any crime involving the use, possession, sale,
manufacture, distribution, or transportation of a
controlled substance, drug, narcotic, or alcoholic
beverage; conviction of a crime involving assault
or an act of violence; conviction of a crime involv-
ing breaking or entering, burglary, larceny, or any
offense involving moral turpitude; or does not
have a history of addiction to alcohol or a narcotic
drug; provided that, for purposes of this Section,
"conviction" means and includes the entry of a
plea of guilty or no contest or a verdict rendered
in open court by a judge or jury.
(d) Upon satisfactory completion of the back-
ground investigation, a oorpomt e company busi-
ness license may be issued. This license shall be
conspicuously displayed at the principle place of
business within the State of North Carolina.
(e) The corporat e company business license shall
be issued only to the corporation and shall not be
construed to extend to the licensing of its direc-
tors, officers, or employees.
(f) The issuance of the oorpomto company
business license is issued to the firm, association,
or corporation in addition to the license issued to
the qualifying agent. Therefore, the qualifying
agent for the firm, association, or corporation
which has been issued the oorpomt e company
business license shall be responsible for assuring
compliance with G.S. 74D.
Statutory Authority G. S. 74D-2(a); 74D-5.
TITLE ISA - DEPARTMENT OF
ENVIRONMENT, HEALTH, AND
NATURAL RESOURCES
iSotice is hereby given in accordance with G.S.
150B-21.2 that the DEHNR-DEM-Air Quality
intends to adopt rules cited as 15A NCAC 2D
.0955 - .0957; 2Q .0312. .0525, .0607 and amend
2D .0501. .0516. .0530; 2Q .0507. .0518.
1 he proposed effective dates of this action are:
ISA NCAC 2D .0501, .0516, .0530; 2Q .0312,
.0507, .0518, .0525, .0607 - February 1, 1995.
ISA NCAC 2D .0955 - .0957 - May 1, 1995.
1 he public hearing will be conducted at:
7:00 p.m.
September 22, 1994
Charlotte/Mecklenburg Government Center
Conference Center-2nd Floor
600 East 4th Street
Charlotte, North Carolina
7:00 p.m.
September 29, 1994
Archdale Building
Ground Floor Hearing Room
512 N. Salisbury Street
Raleigh, North Carolina
Mxeason for Proposed Action:
The amendments to 15A NCAC 2D .0501 and
.0516 are to clarify sulfur dioxide stack testing
compliance methods, to update referenced Ameri-
can Standard Testing Methods, and to clarify that
the general sulfur dioxide emissions standand does
not apply to spodumene ore roasting.
The amendment to 15A NCAC 2D .0530 establish-
es an increment level for PM-10 to replace the
increment level for total suspended particulate
(TSP) by changing the rule to refer to the latest
amendment of the federal regulation in 40 CFR
51.166
The proposed new rules 15 A NCAC 2D .0955,
.0956, and .0957 will establish reasonably avail-
able control technology (RACT)for thread bonding
manufacturing facilities , glass Christmas ornament
manufacturing, and commercial bakeries. These
rules will implement federal requirements for
RACT and only apply in nonattainment and main-
tenance areas.
The proposed new rules 15A NCAC 2Q .0312,
.0525, and .0607, and amendments to rules 15 A
NCAC 2Q .0507 and .0518 will establish process-
ing schedules for permit applications to ensure
timely review of the applications.
i^omment Procedures: All persons interested in
these matters are invited to attend the public
hearings. Any person desirins to comment for
more than three minutes is requested to submit a
written statement for inclusion in the record of
proceedings at the public hearine. The hearing
record will remain open until October 31, 1994, to
805
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NORTH CAROLINA REGISTER
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PROPOSED RULES
receive additional written statements.
Comments should be sent to and additional infor-
mation concerning the hearing or the proposals
may be obtained by contacting:
Mr. Thomas C. Allen
Division of Environmental Management
P.O. Box 29535
Raleigh, North Carolina 27626-0535
(919) 733-1489
Fiscal Note: This Rule ISA NCAC 2D .0530
affects the expenditures or revenues of local
funds. A fiscal note was submitted to the Fiscal
Research Division on February 23, 1994, OSBM
on March 4, 1994, N. C League of Municipalities
on February 23, 1994, and N. C. Association of
County Commissioners on February 23, 1994.
CHAPTER 2 - ENVreONMENTAL
MANAGEMENT
SUBCHAPTER 2D - Am POLLUTION
CONTROL REQUIREMENTS
SECTION .0500 - EMISSION
CONTROL STANDARDS
.0501 COMPLIANCE WITH EMISSION
CONTROL STANDARDS
(a) Purpose and Scope. The purpose of this
Rule is to assure orderly compliance with emission
control standards found in this Section. This Rule
shall apply to all air pollution sources, both com-
bustion and non-combustion.
(b) In determining compliance with emission
control standards, means shall be provided by the
owner to allow periodic sampling and measuring
of emission rates, including necessary ports,
scaffolding and power to operate sampling equip-
ment; and upon the request of the Division of
Environmental Management, data on rates of
emissions shall be supplied by the owner.
(c) Testing to determine compliance shall be in
accordance with the following procedures, except
as may be otherwise required in Rules .0524,
.0525, and .0604 of this Subchapter.
(1) Method 1 of Appendix A of 40 CFR
Part 60 shall be used to select a suitable
site and the appropriate number of test
points for the following situations:
(A) particulate testing,
(B) velocity and volume flow rate mea-
surements;
(C) testing for acid mist or other pollut-
ants which occur in liquid droplet
form,
(D) any sampling for which velocity and
volume flow rate measurements are
necessary for computing final test
results, and
(E) any sampling which involves a sam-
pling method which specifies
isokinetic sampling. (Isokinetic
sampling is sampling in which the
velocity of the gas at the point of
entry into the sampling nozzle is
equal to the velocity adjacent to the
nozzle.)
Method 1 shall be applied as written
with the following clarifications:
Testing installations with multiple
breechings can be accomplished by
testing the discharge stack(s) to which
the multiple breechings exhaust. If the
multiple breechings are individually
tested, then
Method 1 shall be applied to each
breeching individually. If test ports in
a duct are located less than two
diameters downstream from any
disturbance (fen, elbow, change in
diameter, or any other physical feature
that may disturb the gas flow) or
one-half diameter upstream from any
disturbance, the acceptability of the test
location shall be subject to the approval
of the Director, or his designee.
(2) Method 2 of Appendix A of 40 CFR
Part 60 shall be applied as written and
used concurrently with any test method
in which velocity and volume flow rate
measurements are required.
(3) Sampling procedures for determining
compliance with particulate emission
control standards shall be in accordance
with Method 5 of Appendix A of 40
CFR Part 60. Method 17 of Appendix
A of 40 CFR Part 60 may be used
instead of Method 5 provided that the
stack gas temperature does not exceed
320° F. The minimum time per test
point for particulate testing shall be two
minutes and the minimum time per test
run shall be one hour. The sample gas
drawn during each test run shall be at
least 30 cubic feet. A number of
sources are known to emit organic
material (oil, pitch, plasticizers, etc.)
which exist as finely divided liquid
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NORTH CAROLINA REGISTER
September 1, 1994
806
PROPOSED RULES
droplets at ambient conditions. These
materials cannot be satisfactorily
collected by means of the above
Method 5. In these cases the
Commission may require the use of
Method 5 as proposed on August 17,
1971, in the Federal Register, Volume
36, Number 159.
(4) The procedures for determining
compliance with sulfur dioxide emission
control standards for fuel burning
sources may be either by determining
sulfur content with fuel analysis or by
stack sampling. Combustion sources
choosing to demonstrate compliance
through stack sampling shall follow
procedures described in Method 6 of
Appendix A of 40 CFR Part 60. When
Method 6 of Appendix A of 40 CFR
Part 60 is used to determine
compliance, compliance shall be
determined by averaging six 20-minute
samples taken over such a period of
time that no more than 20 minutes
elapses between any two consecutive
samples. If a source chooses to
demonstrate compliance by analysis of
sulfur in fuel, sampling, preparation,
and analysis of fuels shall be in
accordance with the following
American Society of Testing and
Materials (ASTM) methods:
(A) coal:
(i) sampling--ASTM Method D
2234-83;
(ii) preparation— ASTM Method D
2013-^;
(iii) gross calorific value
(BTU)--ASTM Method D
2015-«5;
(iv) moisture content— ASTM Method
D 3173-8§or D 5412 :
(v) sulfur content— ASTM Method D
3177-84 or ASTM Method D
4239-85;
(B) oil:
(i) sampling— A sample shall be
collected at the pipeline inlet to
the fuel burning unit after
sufficient fuel has been drained
from the line to remove all fuel
that may have been standing in
the line;
(ii) heat of combustion (BTU)-ASTM
Method D 240-85 or D 2015 :
(iii) sulfur content— ASTM Method D
12 9 6 4 (r e approv e d 197 8 ) or D
1552 .
The sulfur content and BTU content of
the fuel shall be reported on a dry
basis. When the test methods described
in Parts (A) or (B) of this Subparagraph
are used to demonstrate that the
ambient air quality standards for sulfur
dioxide are being protected, the sulfur
content shall be determined at least
once per year from a composite of at
least three or 24 samples taken at equal
time intervals from the fuel being
burned over a three-hour or 24-hour
period, respectively, whichever is the
time period for which the ambient
standard is most likely to be exceeded;
this requirement shall not apply to
sources that are only using fuel analysis
in place of continuous monitoring to
meet the requirements of Section .0600
of this Subchapter.
(5) Sulfuric acid manufecturing plants and
spodumene ore roasting plants shall
demonstrate compliance with Rules
.0517 and .0527, respectively, of this
Section by using Method 8 of Appendix
A of 40 CFR Part 60. Compliance
shall be determined by averaging
emissions measured by three one-hour
tests.
(6) All oth e r industrial processes not
covered under Subparagraph (5) of this
Paragraph emitting sulfur dioxide shall
demonstrate compliance by sampling
procedures described in Method 6 of
Appendix A of 40 CFR Part 60.
Compliance shall be determined by
averaging six 20-minute samples taken
over such a period of time that no more
than 20 minutes elapses between any
two consecutive samples.
(7) Sampling procedures to demonstrate
compliance with emission standards for
nitrogen oxides shall be in accordance
with the procedures set forth in Method
7 of Appendix A of 40 CFR Part 60.
(8) Method 9 of Appendix A of 40 CFR 60
shall be used when opacity is
determined by visual observation.
(9) Notwithstanding the stated applicability
to new source performance standards or
primary aluminum plants, the
procedures to be used to determine
807
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NORTH CAROLINA REGISTER
September 1, 1994
PROPOSED RULES
fluoride emissions are:
(A) for sampling emissions from stacks,
Method 13 A or 13B of Appendix A
of 40 CFR Part 60,
(B) for sampling emissions from roof
monitors not employing stacks or
pollutant collection systems. Method
14 of Appendix A of 40 CFR Part 60,
and
(C) for sampling emissions from roof
monitors not employing stacks but
equipped with pollutant collection
systems, the procedure under 40 CFR
60.8(b), except that the Director of
the Division of Environmental
Management shall be substituted for
the administrator.
(10) Emissions of total reduced sulfur shall
be measured by the test procedure
described in Method 16 of Appendix A
of 40 CFR Part 60 or Method 16A of
Appendix A of 40 CFR Part 60.
(11) Emissions of mercury shall be
measured by the test procedure
described in Method 101 or 102 of
Appendix B of 40 CFR Part 61 .
(12) Each test (excluding fuel samples) shall
consist of three repetitions or runs of
the applicable test method. For the
purpose of determining compliance with
an applicable emission standard the
average of results of all repetitions shall
apply. In the event that a sample is
accidentally lost or conditions occur in
which one of the three runs must be
discontinued because of forced
shutdown, failure of an irreplaceable
portion of the sample train, extreme
meteorological conditions, or other
circumstances, beyond the owner or
operator's control, and there is no way
to obtain another sample; then
compliance may, upon the Director's
approval be determined using the
arithmetic average of the results of the
two other runs.
(13) In conjunction with performing certain
test methods prescribed in this Rule, the
determination of the fraction of carbon
dioxide, oxygen, carbon monoxide and
nitrogen in the gas being sampled is
necessary to determine the molecular
weight of the gas being sampled.
Collecting a sample for this purpose
shall be done in accordance with
Method 3 of Appendix A of 40 CFR
Part 60:
(A) The grab sample technique may also
be used with instruments such as
Bacharach Fyrite (trade name) with
the following restrictions:
(i) Instruments such as the Bacharach
Fyrite (trade name) may only be
used for the measurement of
carbon dioxide.
(ii) Repeated samples shall be taken
during the emission test run to
account for variations in the
carbon dioxide concentration. No
less than four samples shall be
taken during a one-hour test run,
but as many as necessary shall be
taken to produce a reliable
average.
(iii) The total concentration of gases
other than carbon dioxide, oxygen
and nitrogen shall be less than one
percent.
(B) For fuel burning sources,
concentrations of oxygen and nitrogen
may be calculated from combustion
relations for various fuels.
(14) For those processes for which the
allowable emission rate is determined
by the production rate, provisions shall
be made for controlling and measuring
the production rate. The source shall
be responsible for ensuring, within the
limits of practicality, that the equipment
or process being tested is operated at or
near its maximum normal production
rate or at a lesser rate if specified by
the Director or his delegate. The
individual conducting the emission test
shall be responsible for including with
his test results, data which accurately
represent the production rate during the
test.
(15) Emission rates for wood or fuel burning
sources which are expressed in units of
pounds per million BTU shall be
determined by the "Oxygen Based F
Factor Procedure" described in 40 CFR
Part 60, Appendix A, Method 19,
Section 5. Other procedures described
in Method 19 may be used subject to
the approval of the Director, Division
of Environmental Management. To
provide data of sufficient accuracy to
use with the F-factor methods, an
NORTH CAROLINA REGISTER
September 1, 1994
808
PROPOSED RULES
integrated (bag) sample shall be taken
for the duration of each test run. In the
case of simultaneous testing of multiple
ducts, there shall be a separate bag for
each sampling train. The bag sample
shall be analyzed with an Orsat
analyzer in accordance with Method 3
of Appendix A of 40 CFR Part 60.
(The number of analyses and the
tolerance between analyses are specified
in Method 3.) The specifications
indicated in Method 3 for the
construction and operation of the bag
sampling apparatus shall be followed.
(16) Particulate testing on steam generators
that utilize soot blowing as a routine
means for cleaning heat transfer
surfaces shall be conducted so that the
contribution of the soot blowing is
represented as follows:
(A) If the soot blowing periods are
expected to represent less than 50
percent of the total particulate
emissions, one of the test runs shall
include a soot blowing cycle.
(B) If the soot blowing periods are
expected to represent more than 50
percent of the total particulate
emissions then two of the test runs
shall each include a soot blowing
cycle.
Under no circumstances shall all three
test runs include soot blowing. The
average emission rate of particulate
matter is calculated by the equation:
Eavg = Es S(A iiB} _(_ En/R;S-BS\
AR R AR
Eavg equals the average emission rate
in pounds f>er million Btu for daily
operating time. Eg equals the average
emission rate in pounds per million Btu
of sample(s) containing soot blowing.
En equals the average emission rate in
pounds per million Btu of sample(s)
with no soot blowing. A equals hours
of soot blowing during sample(s). B
equals hours without soot blowing
during sample(s) containing
sootblowing. R equals average hours
of of)eration per 24 hours. S equals
average hours of soot blowing per 24
hours. If large changes in boiler load
or stack flow rate occur during soot
blowing, other methods of prorating the
emission rate may be considered more
appropriate; for these tests the Director
or his designee may approve an
alternate method of prorating.
(17) Emissions of volatile organic
compounds shall be measured by the
appropriate test procedure in Section
.0900 of this Subchapter.
(18) Upon prior approval by the Director or
his delegate, test procedures different
from those described in this Rule may
be used if they will provide equivalent
or more reliable results. Furthermore,
the Director or his delegate may
prescribe alternate test procedures on an
individual basis when he considers that
the action is necessary to secure reliable
test data. In the case of sources for
which no test method is named, the
Director or his delegate may prescribe
or approve methods on an individual
basis.
(d) All e xisting s ouro e e of e mission Bholl comply
with applicabl e r e gulations and s tondordo at the
e arli e st possibl e date. All new sources shall be in
compliance prior to begiiming operations.
(e) In addition to any control or manner of
operation necessary to meet emission standards in
this Section, any source of air pollution shall be
operated with such control or in such manner that
the source shall not cause the ambient air quality
standards of Section .0400 of this Subchapter to be
exceeded at any point beyond the premises on
which the source is located. When controls more
stringent than named in the applicable emission
standards in this Section are required to prevent
violation of the ambient air quality standards or
are required to create an offset, the permit shall
contain a condition requiring these controls.
(f) The Bubble Concept. A facility with
multiple emission sources or multiple facilities
within the same area may choose to meet the total
emission limitation for a given pollutant through a
different mix of controls than that required by the
rules in this Section or Section .0900 of this
Subchapter.
(1) In order for this mix of alternative
controls to be permitted the Director
shall determine that the following
conditions are met:
(A) Sources to which Rules .0524, .0525,
.0530, and .0531 of this Section, the
federal New Source Performance
Standards (NSPS), the federal
National Emission Standards for
809
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PROPOSED RULES
Hazardous Air Pollutants
(NESHAPS), regulations established
pursuant to Section 111 (d) of the
federal Clean Air Act, or state or
federal Prevention of Significant
Deterioration (PSD) requirements
apply, will have emissions no larger
than if there were not an alternative
mix of controls;
(B) The facility (or fecilities) is located in
an attainment area or an unclassified
area or in an area that has been
demonstrated to be attainment by the
statutory deadlines (with reasonable
further progress toward attainment)
for those pollutants being considered;
(C) All of the emission sources affected
by the alternative mix are in
compliance with applicable
regulations or are in compliance with
established compliance agreements;
and
(D) The review of an application for the
proposed mix of alternative controls
and the enforcement of any resulting
permit will not require expenditures
on the part of the State in excess of
five times that which would otherwise
be required.
(2) The owner(s) or operator(s) of the
facility (fecilities) shall demonstrate to
the satisfaction of the Director that the
alternative mix of controls is equivalent
in total allowed emissions, reliability,
enforceability, and environmental
impact to the aggregate of the otherwise
applicable individual emission
standards; and
(A) that the alternative mix approach does
not interfere with attainment and
maintenance of ambient air quality
standards and does not interfere with
the PSD progrcmi; this demonstration
shall include modeled calculations of
the amount, if any, of PSD increment
consumed or created;
(B) that the alternative mix approach
conforms with reasonable further
progress requirements in any
nonattainment area;
(C) that the emissions under the
alternative mix approach are in feet
quantifiable, and trades among them
are even;
(D) that the pollutants controlled under the
alternative mix approach are of the
same criteria pollutant categories,
except that emissions of some criteria
pollutants used in alternative emission
control strategies are subject to the
limitations as defined in 44 FR 71784
(December 11, 1979), Subdivision
D. l.c.ii. The Federal Register
referenced in this Part is hereby
incorporated by reference and does
not include subsequent amendments or
editions.
The demonstrations of equivalence shall
be performed with at least the same
level of detail as The North Carolina
State Implementation plan for Air
Quality demonstration of attainment for
the area in question. Moreover, if the
fecility involves another fecility in the
alternative strategy, it shall complete a
modeling demonstration to ensure that
air quality is protected. Demonstrations
of equivalency shall also take into
account differences in the level of
reliability of the control measures or
other uncertainties.
(3) The emission rate limitations or control
techniques of each source within the
fecility (fecilities) subjected to the
alternative mix of controls shall be
specified in the fecility's (fecilities')
permits(s).
(4) Compliance schedules and enforcement
actions shall not be affected because an
application for an alternative mix of
controls is being prepared or is being
reviewed.
(5) The Director may waive or reduce
requirements in this Paragraph up to the
extent allowed by the Emissions
Trading Policy Statement published in
the Federal Register of April 7, 1982,
pages 15076-15086, provided that the
analysis required by Paragraph (g) of
this Rule shall support any waiver or
reduction of requirements. The Federal
Register referenced in this Paragraph is
hereby incorporated by reference and
does not include subsequent
amendments or editions.
(g) In a permit application for an alternative mix
of controls under Paragraph (f) of this Rule, the
owner or operator of the fecility shall demonstrate
to the satisfection of the Director that the proposal
is equivalent to the existing requirements of the
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September 1, 1994
810
PROPOSED RULES
SIP in total allowed emissions, enforceability,
reliability, and environmental impact. The
Director shall provide for public notice with an
opportunity for a request for public hearing
following the procedures under 15 A NCAC 2Q
.0300 or .0500, as applicable. If and when a
permit containing these conditions is issued, it will
become a part of the state implementation plan
(SIP) as an appendix available for inspection at the
department's regional offices. Until the U.S.
Environmental Protection Agency (EPA) approves
the SIP revision embodying the permit containing
an alternative mix of controls, the facility shall
continue to meet the otherwise applicable existing
SIP requirements. The revision will be approved
by EPA on the basis of the revision's consistency
with EPA's "Policy for Alternative Emission
Reduction Options Within State Implementation
Plans" as promulgated in the Federal Register of
December 11, 1989, pages 71780-71788, and
subsequent rulings.
(h) The referenced ASTM test methods in this
Rule are hereby incorporated by reference and
include subsequent amendments and editions.
Copies of referenced ASTM test methods or
Federal Registers may be obtained from the
Division of Environmental Management, P.O. Box
29535, Raleigh, North Carolina 27626-0535 at a
cost of ten cents ($0. 10) per page.
Statutory Authority G.S. 143-215. 3(a)(1);
143-215. 107(a)(5).
.0516 SULFUR DIOXIDE EMISSIONS
FROM COMBUSTION SOURCES
(a) Emission of sulfur dioxide from any source
of combustion that is discharged from any vent,
stack, or chimney shall not exceed 2.3 pounds of
sulfur dioxide per million BTU input. Sulfur
dioxide formed by the combustion of sulfur in
fuels, wastes, ores, and other substances shall be
included when determining compliance with this
standard. Sulfur dioxide formed or reduced as a
result of treating flue gases with sulfur trioxide or
other materials shall also be accounted for when
determining compliance with this standard.
(b) A source subject to an emission standard for
sulfur dioxide in R e gulation Rule .0524^ ef .0525^
or .0527 of this Section shall meet that standard.
Statutory Authority G.S 143-215. 3(a) (1); 143-
215. 107(a) (5).
.0530 PREVENTION OF SIGNIFICANT
DETERIORATION
(a) The purpose of the Rule is to implement a
program for the prevention of significant
deterioration of air quality as required by 40 CFR
51.166 as amended Gotober 17, 19 88 June 3^
1993 .
(b) For the purposes of this Rule the definitions
contained in 40 CFR 51.166(b) and 40 CFR
51.301 shall apply. The reasonable period
specified in 40 CFR 51.166(b)(3)(ii)shall be seven
years. The limitation specified in 40 CFR
51.166(b)(15)(ii) shall not apply.
(c) All areas of the State shall be classified as
Class II except that the following areas are Class
I:
(1) Great Smoky Mountains National Park;
(2) Joyce Kilmer Slickrock National
Wilderness Area;
(3) Linville Gorge National Wilderness
Area;
(4) Shining Rock National Wilderness
Area;
(5) Swanquarter National Wilderness Area.
(d) Redesignations of areas to Class I or II may
be submitted as state proposals to the
Administrator of the Environmental Protection
Agency (EPA), if the requirements of 40 CFR
51.166(g)(2) are met. Areas may be proposed to
be redesignated as Class III, if the requirements of
40 CFR 51.166(g)(3) are met. Redesignations
may not, however, be proposed which would
violate the restrictions of 40 CFR 51.166(e).
Lands within the boundaries of Indian Reservations
may be redesignated only by the appropriate Indian
Governing Body.
(e) In areas designated as Class I, II, or III,
increases in pollutant concentration over the
baseline concentration shall be limited to the
values set forth in 40 CFR 51.166(c). However,
concentration of the pollutant shall not exceed
standards set forth in 40 CFR 51.166(d).
(f) Concentrations attributable to the conditions
described in 40 CFR 51.166(f)(1) shall be
excluded in determining compliance with a
maximum allowable increase. However, the
exclusions referred to in 40 CFR 51.I66(f)(l)(i)or
(ii) shall be limited to five years as described in 40
CFR 51.166(f)(2).
(g) Major stationary sources and major
modifications shall comply with the requirements
contained in 40 CFR 51 . 166(i) and by extension in
40 CFR 51.166CJ) through (o). The transition
provisions allowed by 40 CFR 52.21 (i)(ll)(i) and
(ii) and (m)(l)(vii) and (viii) are hereby adopted
under this Rule. The minimum requirements
described in the portions of 40 CFR 51.166
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referenced in this Paragraph are hereby adopted as
the requirements to be used under this Rule,
except as otherwise provided in this Rule.
Wherever the language of the portions of 40 CFR
51.166 referenced in this Paragraph speaks of the
"plan," the requirements described therein shall
apply to the source to which they pertain, except
as otherwise provided in this Rule. Whenever the
portions of 40 CFR 51.166 referenced in this
Paragraph provide that the State plan may exempt
or not apply certain requirements in certain
circumstances, those exemptions and provisions of
nonapplicability are also hereby adopted under this
Rule. However, this provision shall not be
interpreted so as to limit information that may be
requested from the owner or operator by the
Director as specified in 40 CFR 51.166(n)(2).
(h) 15A NCAC 2Q .0102 and .0302 are not
applicable to any source to which this Rule
applies. The owner or operator of the sources to
which this Rule applies shall apply for and receive
a permit as required in 15A NCAC 2Q .0300 or
.0500.
(i) When a particular source or modification
becomes a major stationary source or major
modification solely by virtue of a relaxation in any
enforceable limitation which was established after
August 7, 1980, on the capacity of the source or
modification to emit a pollutant, such as a
restriction on hours of operation, then the
provisions of this Rule shall apply to the source or
modification as though construction had not yet
begun on the source or modification.
(j) Volatile organic compounds exempted from
coverage in Subparagraph (c)(5) of Rule .0531 of
this Section shall also be exempted when
calculating source applicability and control
requirements under this Rule.
(k) The degree of emission limitation required
for control of any air pollutant under this Rule
shall not be affected in any manner by:
(1) that amount of a stack height, not in
existence before December 31, 1970,
that exceeds good engineering practice;
or
(2) any other dispersion technique not
implemented before then.
(1) A substitution or modification of a model as
provided for in 40 CFR 51.166(1) shall be subject
to public comment procedures in accordance with
the requirements of 40 CFR 51.166(q).
(m) Permits may be issued on the basis of
innovative control technology as set forth in 40
CFR 51.166(s)(l) if the requirements of 40 CFR
51.166(s)(2) have been met, subject to the
condition of 40 CFR 51.166(s)(3), and with the
allowance set forth in 40 CFR 51.166(s)(4).
(n) If a source to which this Rule applies
impacts an area designated Class I by requirements
of 40 CFR 51.166(e), notice to EPA will be
provided as set forth in 40 CFR 51.166(p)(l). If
the Federal Land Manager presents a
demonstration described in 40 CFR 51.166(p)(3)
during the public comment period or public
hearing to the Director and if the Director concurs
with this demonstration, the permit application
shall be denied. Permits may be issued on the
basis that the requirements for variances as set
forth in 40 CFR 51 . 166(p)(4), (p)(5) and (p)(7), or
(p)(6) and (p)(7) have been satisfied.
(o) A permit application subject to this Rule
shall be processed in accordance with the
procedures and requirements of 40 CFR 5 1 . 166(q).
Within 30 days of receipt of the application,
applicants will be notified if the application is
complete as to initial information submitted.
Notwithstanding this determination, the 90-day
period provided for the Commission to act by G.S.
143-215. 108(b) shall be considered to begin at the
end of the jieriod allowed for public comment, at
the end of any public hearing held on the
application, or when the applicant supplies
information requested by the Director in answer to
comments received during the comment period or
at any public hearing, whichever is later. The
Director shall notify the Administrator of EPA of
any application considered approved by expiration
of the 90 days; this notification shall be made
within 10 working days of the date of expiration.
If no permit action has been taken when 70 days of
the 90-day period have expired, the Commission
shall relinquish its prevention of significant
deterioration (PSD) authority to EPA for that
permit. The Commission shall notiiy by letter the
EPA Regional Administrator and the applicant
when 70 days have expired. EPA will then have
responsibility for satisfying unmet PSD
requirements, including permit issuance with
appropriate conditions. The permit applicant must
secure from the Commission, a permit revised (if
necessary) to contain conditions at least as
stringent as those in the EPA permit, before
beginning construction. Commencement of
construction before full PSD approval is obtained
constitutes a violation of this Rule.
(p) Approval of an application with regard to the
requirements of this Rule shall not relieve the
owner or operator of the responsibility to comply
fully with applicable provisions of other rules of
this Chapter and any other requirements under
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812
PROPOSED RULES
local, state, or federal law.
(q) When a source or modification subject to
this Rule may affect the visibility of a Class I area
named in Paragraph (c) of this Rule, the following
procedures shall apply:
(1) The Director shall provide written
notification to all affected Federal Land
Managers within 30 days of receiving
the permit application or within 30 days
of receiving advance notification of an
application. The notification shall be at
least 30 days prior to the publication of
notice for public comment on the
application. The notification shall
include a copy of all information
relevant to the permit application
including an analysis provided by the
source of the potential impact of the
proposed source on visibility.
(2) The Director shall consider any analysis
concerning visibility impairment
performed by the Federal Land
Manager if the analysis is received
within 30 days of notification. If the
Director finds that the analysis of the
Federal Land Manager fails to
demonstrate to his satisfaction that an
adverse impact on visibility will result
in the Class I area, the Director shall
provide in the notice of public hearing
on the application, an explanation of his
decision or notice as to where the
explanation can be obtained.
(3) The Director may require monitoring of
visibility in or around any Class I area
by the proposed new source or
modification when the visibility impact
analysis indicates possible visibility
impairment.
(r) Revisions of the North Carolina State
Implementation Plan for Air Quality shall comply
with the requirements contained in 40 CFR
51.166(a)(2).
(s) The version of the Code of Federal
Regulations incorporated in this Rule is that as of
January 1. — 19 8 9. June 3^ 1993. and does not
include any subsequent amendments or editions to
the referenced material.
Statutory Authority G.S. 143-215. 3(a)(1);
143-215. 107(a)(3); 1 43-21 5. 107(a)(5);
143-215. 107(a)(7); 143-215. 108(b); 150B-21. 6.
SECTION .0900 - VOLATILE
ORGANIC COMPOUNDS
.0955 THREAD BONDING
MANUFACTURING
(a) For the purpose of this Rule, the following
definitions a pply:
(1) "Capture hoods" means any device
designed to remove emissions from the
solution bath tray areas during the
manufacturing process.
(2) "Curing" means exposing coated
threads to high temperatures in an oven
until the nylon solution mixture hardens
(vaporizing the solvents) and bonds to
the threads.
(3) "Day tanks" means holding tanks that
contain nylon solution mixture ready
for use.
(4) "Drying ovens" means any apparatus
through which the coated threads are
conveyed while curing.
(5) "Enclose" means to construct an area
within the plant that has a separate
ventilation system and is maintained at
a slightly negative pressure.
(6) "Fugitive emissions" means emissions
that cannot ^ collected and routed to a
control system.
(7) "Nylon thread coating process" means
a process in which threads are coated
with a nylon solution and oven cured.
(8) "Permanent label " means a label that
cannot be easily removed or defaced.
(9) "Polyester solution mixture" means a
mixture of polyester and solvents which
is used for thread coating.
(10) "Storing means reserving material
supply for future use.
(11) "Thread bonding manufacturing" means
coating single or multi-strand threads
with plastic (nylon or polyester solution
mixture) to impart properties such as
additional strength and durability, water
resistance, and moth repellency.
(12) "Transporting" means moving material
supply from one place to another.
(b) This Rule applies in accordance with Rule
.0902rb) of this Section to any thread bonding
manufacturing facility with total uncontrolled
exhaust emissions from nylon thread coating
process collection hoods and drying ovens gi
volatile organic compounds (VOC) equal to or
greater than 100 tons per year.
(c) Annual VOC emissions from each nylon
thread coating process shall be determined b^
multiplying the hourly amount of VOC consumed
by the total scheduled operating hours per year.
813
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PROPOSED RULES
(d) Emissions from each nylon thread coating
process subject to this Rule shall be reduced:
(1) by at least 95 percent by weight, or
(2) by installing a thermal incinerator with
a temperature of at least 1600° F and a
residence time of at least 0.75 seconds.
(e) The owner or operator of any thread bonding
manufacturing facility shall:
(1) enclose the nylon thread coating process
area of the plant to prevent fugitive
emissions from entering other plant
areas;
(2) store all VOC containing materials in
covered tanks or containers:
(3) ensure that equipment used for
transporting or storing VOC containing
material does not leak and that all lids
and seals used by such equipment are
kept in the closed position at all times
except when in actual use;
(4) not cause or allow VOC conteining
material to be splashed, spilled, or
discarded in sewers;
(5) hold only enough nylon solution
mixture in the day tanks to
accommodate daily process times
measured in hours; and
(6) place permanent and conspicuous labels
on all equipment affected by
Subparagraphs (4) through £5) of this
Paragraph summarizing handling
procedures described in Subparagraphs
(4) through (5) of this Paragraph for
VOC contaminated materials at the
nylon thread coating process.
(f) The owner or operator of a thread bonding
manufacturing facility shall notify the director
within 30 days after the calculated annual
emissions of VOC from nylon thread coating
processes equal or exceed 100 tons per year. The
owner or operator shall submit within six months
after such calculation a permit a pplication
including a schedule to bring the facility into
compliance with this Rule.
Statutory Authority G.S. 143-215. 3(a)(1); 143-
215.107(a).
.0956 GLASS CHRISTMAS ORNAMENT
MANUFACTURING
(a) For the purpose of this Rule, the following
definitions a pply:
(1) "Coating" means the application of a
layer of material, either by dipping or
spraying, in a relatively unbroken film
onto glass Christmas ornaments.
(2) "Curing ovens" means any a pparatus
through which the coated glass
Christmas ornaments are conveyed
while drying.
(3) "Glass Christmas ornament" means any
glass ornament that is coated with
decorative exterior and is traditionally
hung on Christmas trees.
(4) "Glass Christmas ornament
manufacturing facility" means a facility
that coats glass Christmas ornaments
through the process of interior coating
or exterior coating that uses either
mechanical or hand-dipping methods,
drying (curing), cutting, and packaging
operations.
(5) "Mechanical coating lines" means
equipment that facilitates mechanized
di pping or spraying of a coating onto
glass Christmas ornaments in which the
neck of each ornament is held
mechanically during the coating
operation.
(6) "Solvent-borne coating" means a
coating that uses organic solvents as an
ingredient.
(h) This Rule applies in accordance with Rule
.0902(1)) of this Section to any curing ovens
servicing the mechanical coating lines in the
coating of glass Christmas ornaments at glass
Christmas tree ornament manufacturing facilities
with potential volatile organic compound (VOC)
emissions of 100 tons per year or more.
(c) This Rule does not a pply to glass Christmas
ornament manufacturing facilities that do not use
solvent-borne coating materials.
(d) Emissions of VOC from each curing oven
shall be reduced by at least 95 percent by weight.
(e) Emissions of VOC from all curing ovens
servicing the mechanical coating lines at the glass
Christmas ornament manufacturing facility shall
not exceed 33.9 pounds of VOC per hour.
(f) If the owner or operator of a facility subject
to this Rule chooses to use low VOC content,
solvent-borne coatings to reduce emissions, the
emission reduction from the use of these coatings
shall be equivalent to that achieved using add-on
controls.
(g) The owner or operator of a Christmas tree
ornament manufacturing facility shall notify the
director within 30 days after the calculated annual
emissions of VOC from the facility equal or
exceed 100 tons per year. The owner or operator
shall submit within six months after such
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814
PROPOSED RULES
calculation a permit application including a
schedule to bring the facility into compliance with
this Rule.
Statutory Authority G.S. 143-21 5. 3(a)(1); 143-
215. 107(a).
.0957 COMMERCIAL BAKERIES
(a) For the purpose of this Rule, the following
definitions apply:
(1) "Baking" means the process by which
dough is changed to bread in an oven
as a result of temperature and time.
(2) "Commercial Bakery" means an
establishment where bread and baked
goods are produced.
(3) "Oven" means a heated chamber or
compartment where the baking process
takes place.
(h) This Rule applies in accordance with Rule
■Q9Q2(b) of this Section to any baking oven at a
commercial bakery with potential volatile organic
compound (VOC) emissions greater than 175
pounds of VOC per day. Daily volatile organic
compound emissions shall be determined according
to the calculation procedures in Paragraph (d) of
this Rule.
(c) Emissions of VOC from each baking oven
subject to this Rule shall be reduced by at least 90
percent by weight.
(d) Daily volatile organic compound emissions
from each commercial baking oven shall be
determined according to the following: 0.00314
times the daily production rate (pounds of bread
per day).
(e) The owner or operator of a commercial
bakery shall notify the Director within 30 days
after the calculated emissions of VOC from a
baking oven equal or exceed 175 pounds per day.
TTie owner or operator shall submit within six
months after such calculation a permit application
including a schedule to bring the facility into
compliance with this Rule.
Statutory Authority G.S 143-21 5. 3(a)(1); 143-
215.107(a).
SUBCHAPTER 2Q - AIR QUALITY
PERMir PROCEDURES
SECTION .0300 - CONSTRUCTION
AISHD OPERATION PERMTTS
.0312 APPLICATION PROCESSING
SCHEDULE
(a) The Division shall adhere to the following
schedule for processing applications for permits,
permit modifications, and permit renewals:
(1) for permit a pplications, except for
prevention of significant deterioration
under 15A NCAC 2D .0530. new
source review under 15A NCAC 2D
■ 0531 . case-by-case maximum
achievable control technology under
15A NCAC 2D .1109. or a request for
synthetic minor facility status before
one year after EPA a pproves Section
.0500 of this Subchapter, which shall
take at least six months:
(A) The Division shall send written
acknowledgement of receipt of the
permit application to the applicant
within 10 days of receipt of the
application.
(B) The Division shall review all permit
applications within 45 days of receipt
of the application to determine
whether the a pplication is complete or
incomplete for processing purposes.
The Division shall notify the applicant
by letter:
£i} stating that the a pplication as
submitted is complete and
specifying the completeness date.
iii} stating that the application is
incomplete, requesting additional
infiprmation and specifying the
deadline date by which the
requested information is to be
received by the Division, or
(iii) stating that the application is
incomplete and requesting that the
a pplicant rewrite and resubmit the
a pplication.
If the Division does not notify the
a pplicant by letter dated within 45
days of receipt of the application that
the application is incomplete, the
application shall be deemed complete.
A completeness determination shall
not prevent the Director from
requesting additional information at a
later date when such information is
considered necessary to properly
evaluate the source, its air pollution
abatement equipment, or the facility.
If the applicant has not provided the
requested additional information by
the deadline specified in the letter
requesting additional information, the
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PROPOSED RULES
Director may return the a pplication to
the a pplicant as incomplete. TTie
a pplicant may request a time
extension for submittal of the
requested additional information.
(C) If the draft permit is not required to
go to public notice or to public
hearing, the Director shall issue or
deny the permit within 90 days of
receipt of a complete application or
10 days after receipt of requested
additional information, whichever is
later.
(D) If the draft permit is required to go to
public notice with a request for
o pportunity for public hearing under
Rule .0306(a) of this Section, the
Director shall:
£i} send the draft permit to public
notice within 90 days after receipt
of a complete a pplication; and
(ii) take final action on the permit
within 30 days after the close of
the public comment period.
(E) If the draft permit is required to go to
public hearing as a result of a request
for public hearing under Rule
.0307(e) of this Section, the Director
shall:
(i) send the draft permit to public
hearing within 45 days after
approving the request for the
public hearing; and
(ii) take final action on the permit
within 30 days after the close of
the public hearing.
(2) for permit applications for prevention
of significant deterioration under 15A
NCAC 2D .0530 or new source review
under 15A NCAC 2D .0531. the
processing schedules are set out in
those Rules.
(3) for case-by-case maximum achievable
control technology under 15A NCAC
2D .1109:
(A) The Division shall send written
acknowledgement of receipt of the
permit a pplication to the a pplicant
within 10 days of receipt of the
application.
(B) The Division shall review all permit
a pplications within 45 days of receipt
of the application to determine
whether the a pplication is complete or
incomplete for processing purposes.
The Division shall notify the applicant
by letter:
(i) stating that the a pplication as
submitted is complete and
specifying the completeness date.
(ii) stating that the application is
incomplete, requesting additional
information and specifying the
deadline date by which the
requested information is to be
received by the Division, or
(iii) stating that the a pplication is
incomplete and that the a pplicant
rewrite and resubmit the
a pplication.
If the Division does not notify the
applicant by letter dated within 45
days of receipt of the a pplication that
the a pplication is incomplete, the
application shall be deemed complete.
A completeness determination shall
not prevent the Director from
requesting additional information at a
later date when such information is
considered necessary to properly
evaluate the source, its air pollution
abatement equipment, or the facility.
If the a pplicant has not provided the
requested additional information by
the deadline specified in the letter
requesting additional information, the
Director may return the application to
the a pplicant as incomplete. The
applicant may request a time
extension for submittal of the
requested additional information.
(C) The Director shall:
(i) send the draft permit to public
notice within 120 days after
receipt of a complete a pplication
or JO days after receipt of
requested additional information,
whichever is later; and
(ii) take final action on the permit
within 30 days after the close of
the public comment period.
(D) If the draft permit is required to go to
public hearing as a result of a request
for public hearing under Rule
■0307(e) of this Section, the Director
shall:
{i} send the draft permit to public
hearing within 45 days after
a pproving the request for the
public hearing; and
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816
PROPOSED RULES
(ii) take final action on the permit
within 30 days after the close of
the public hearing.
(h) The days that fall between the sending out a
letter requesting additional information and
receiving that additional information shall not be
counted in the schedules under Paragraph (a) of
this Rule.
(c) The Director may return at any time
applications containing insufficient information to
complete the review.
Statutory Authority G.S. 143-215. 3(a)(1); 143-
215.108.
SECTION .0500 - TITLE
V PROCEDURE
.0507 APPLICATION
(a) Except for:
(1) minor fjermit modifications covered
under Rule .0515 of this Section,
(2) significant modifications covered under
Rule .0516(c) of this Section, or
(3) permit applications submitted under
Rule .0506 of this Section,
the owner or operator of a source shall have one
year from the date of begirming of operation of the
source to file a complete application for a permit
or permit revision. However, the owner or
operator of the source shall not begin construction
or operation until he has obtained a construction
and operation permit pursuant to Rule .0501(c) or
(d) and Rule .0504 of this Section.
(b) The application shall include all the
information described in 40 CFR 70.5(c),
including a list of insignificant activities exempted
because of size or production rate under Rule
.0102(b)(2) of this Subchapter, but not including
insignificant activities exempted because of
category under Rule .0102(b)(1) of this
Subchapter. The application form shall be
certified by a responsible official for truth,
accuracy, and completeness. In the application
submitted pursuant to this Rule, the applicant may
attach copies of applications submitted pursuant to
Section .0400 of this Subchapter or 15A NCAC
2D .0530 or .0531, provided the information in
those applications contains information required in
this Section and is current, valid, and complete.
(c) Application for a permit, permit revision, or
permit renewal shall be made in accordance with
Rule .0104 of this Subchapter on official forms of
the Division and shall include plans and
specifications giving all necessary data and
information as required by the application form.
Whenever the information provided on these forms
does not describe the source or its air pollution
abatement equipment to the extent necessary to
evaluate the application, the Director may request
that the applicant provide any other information
that the Director considers necessary to evaluate
the source and its air pollution abatement
equipment.
(d) Along with filing a complete application
form, the applicant shall also file the following:
(1) for a new facility or an expansion of
existing facility, a consistency
determination in accordance with G.S.
143-215. 108(f) that:
(A) bears the date of receipt entered by
the clerk of the local government, or
(B) consists of a letter from the local
government indicating that all zoning
or subdivision ordinances are met by
the facility;
(2) for a new facility or modification of an
existing facility, a written description of
current and projected plans to reduce
the emissions of air contaminants by
source reduction and recycling in
accordance with G.S. 143-215. 108(g);
the description shall include:
(A) for an existing facility, a summary of
activities related to source reduction
and recycling and a quantification of
air emissions reduced and material
recycled during the previous year and
a summary of plans for further source
reduction and recycling; or
(B) for a new facility, a summary of
activities related to and plans for
source reduction and recycling; and
(3) if required by the Director, information
showing that:
(A) The applicant is financially qualified
to carry out the permitted activities,
or
(B) The applicant has substantially
complied with the air quality and
emissions standards applicable to any
activity in which the applicant has
previously been engaged, and has
been in substantial compliance with
federal and state environmental laws
and rules.
(e) The applicant shall submit copies of the
application package as follows:
(1) for sources subject to the requirements
of 15 A NCAC 2D .0530, .0531, or
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.1200, six copies plus one additional
copy for each affected state that the
Director has to notify;
(2) for sources not subject to the
requirements of 15A NCAC 2D .0530,
.0531, or .1200, four copies plus one
additional copy for each affected state
that the Director has to notify.
The Director may at any time during the
application process request additional copies of the
complete application package from the applicant.
{f) — Th e Division ahall r e vi e w all applications
within 60 days of r e c e ipt of th e application to
dotormino whether th e application is complet e or
inoompl e to and so notify th e applicant. ¥he
notifioation shall be a lett e r:
{i^ stating that th e application is d ee m e d
compl e te;
(3) stating that th e application is incompl e t e
and r e qu e sting additional inffarmation;
ef
^ stating that th e application is incompl e te
and that th e applicant needs to rowrito
th e application and r e submit it.
If the Division do e s not notify th e applicant by
letter dated within — 60 — d^w — of r e c e ipt — of th e
application that th e application is incompl e te, th e
application — s hall — be — d ee m e d — compl e te. A
oompl e tonoss det e rmination shall not pr e v e nt th e
Dir e ctor from r e qu e sting additional information at
a later date wh e n such information is consid e r e d
n e c e ssary to prop e rly e valuat e th e sourc e or its air
pollution abat e ment e quipm e nt. — A oomplctcn e sa
d e t e rmination shall not b e neo e ssar)' for minor
modifications under Rul e .051 4 of this S e ction.
{f)£f) Any applicant who fails to submit any
relevant facts or who has submitted incorrect
information in a permit application shall, upon
becoming aware of such failure or incorrect
submittal, submit, as soon as possible, such
supplementary facts or corrected information. In
addition, an applicant shall provide additional
information as necessary to address any
requirements that become applicable to the source
after the date he filed a complete application but
prior to release of a draft permit.
i^(e.) The applicant shall submit the same
number of copies of additional information as
required for the application package.
tf)(h) The submittal of a complete permit
application shall not affect the requirement that any
fecility have a preconstruction permit under 15A
NCAC 2D .0530, .0531, or .0532 or under
Section .0400 of this Subchapter.
{j)£i} The Director shall give priority to permit
applications containing early reduction
demonstrations under Section 112(j)(5) of the
federal Clean Air Act. The Director shall take
final action on such permit applications as soon as
practicable after receipt of the complete permit
application.
^li) With the exceptions specified in Rule
.0203 (i) of this Subchapter, a non-refundable
permit application processing fee shall accompany
each application. The permit application
processing fees are defined in Section .0200 of this
Subchapter. Each permit or renewal application is
incomplete until the permit application processing
fee is received.
ffi(k) The applicant shall retain for the duration
of the permit term one complete copy of the
application package and any information submitted
in support of the application package.
Statutory Authority G.S. 143-215. 3(a)(1); 143-
215. 107(a)(10); 143-215. 108.
.0518 FINAL ACTION
(a) The Director may:
(1) issue a permit, permit revision, or a
renewal containing the conditions
necessary to carry out the purposes of
G.S. 143, Article 21B and the federal
Clean Air Act; or
(2) rescind a permit upon request by the
permittee; or
(3) deny a permit application when
necessary to carry out the purposes of
G.S. Chapter 143, Article 21 B and the
federal Clean Air Act.
(b) The Director may not issue a final permit or
permit revision, except administrative permit
amendments covered under Rule .0514 of this
Section, until ERVs 45-day review period has
expired or until EPA has notified the Director that
ER\ will not object to issuance of the permit or
permit revision, whichever occurs first. The
Director shall issue the permit or permit revision
within five days of receipt of notification from
EPA that it will not object to issuance or of the
expiration of EPA's 45-day review period,
whichever occurs first.
(c) If EPA objects to a proposed permit, the
Director shall respond to EPA's objection within
90 days after receipt of EPA's objection. The
Director shall not issue a permit under this Section
over EPA's objection.
(d) If EPA does not object in writing to the
issuance of a permit, any person may petition EPA
to make such objections by following the
9:11
NORTH CAROLINA REGISTER
September 1, 1994
818
PROPOSED RULES
procedures and meeting the requirements under 40
CFR 70.8(d).
(e) No permit shall be issued, revised, or
renewed under this Section unless all the
procedures set out in this Section have been
followed and all the requirements of this Section
have been met. Default issuance of a permit,
permit revision, or permit renewal by the Director
is prohibited.
(f) Final action shall b e tok e n within 1 8 months
of a s ubmittal of a compl e t e d application, subj e ct
to adjudication, exc e pt for application s s ubmitted
und e r Rule .0506 or .0515 of this Section.
{g)if) Thirty days after issuing a permit,
including a permit issued pursuant to Rule .0509
of this Section, that is not challenged by the
applicant, the Director shall notice the issuance of
the final permit. The notice shall be issued in a
newspaper of general circulation in the area where
the fecility is located. The notice shall include the
name and address of the facility and permit
number.
Statutory Authority G.S. 143-215. 3(a)(1); 143-
215. 107(a)(10): 143-215. 108.
.0525 APPLICATION PROCESSING
SCHEDULE
(a) Except for permit a pplications submitted
under Rule .0506 of this Subchapter, the Division
shall adhere to the following schedule in
processing applications for permits, significant
permit modifications, and permit renewal :
(1) The Division shall send written
acknowledgement of receipt of the
application to the applicant within 10
days of receipt of the a pplication.
The Division shall review all permit
applications within 60 days of receipt of
the application to determine whether the
application is complete or incomplete.
The Division shall notify the applicant
by letter:
stating that the application as
submitted is complete and specifying
the completeness date,
stating that the application is
incomplete. requesting additional
information and specifying the
deadline date by which the requested
information is to be received by the
Division, or
stating that the application is
incomplete and requesting that the
a pplicant rewrite and resubmit the
12)
lA}
im
iC)
application.
If the Division does not notify the
applicant by letter dated within 60 days
of receipt of the a pplication that the
application is incomplete. the
a pplication shall be deemed complete.
A completeness determination shall not
prevent the Director from requesting
additional information at a later date
when such information is considered
necessary to properly evaluate the
source, its air pollution abatement
equipment, or the facility. If the
a pplicant has not provided the requested
additional information by the deadline
specified in the letter requesting
additional information, the Director
may return the a pplication to the
a pplicant as incomplete. The applicant
may request a time extension for
submittal of the requested additional
information. A completeness
determination shall not be necessary for
minor modifications under Rule .0514
of this Section.
(3) The Director shall send the public
notice for public comment on the draft
permit to affected states, to EPA, and
to persons on the mailing list within
270 days after receipt of a complete
application or 10 days after receipt of
requested additional information.
{41
15}
whichever is later.
lA]
m
£6}
(Al
m
If a public hearing is requested and
a pproved by the Director for a draft
permit, it shall be held within 45 days
of the Director's decision to hold a
public hearing.
The Director shall send the proposed
permit to EPA:
within 30 days after the close of the
public comment period if there is no
public hearing on the draft permit; or
within 45 days after the close of the
public hearing if there is a public
hearing on the draft permit.
If ER\ does not object to the pro|x>sed
permit, the Director shall issue the
permit within five days after:
expiration of EPA 45 -day
period: or
review
£7}
receipt of notice from EPA that it will
not object to issuance,
whichever comes first.
If EPA objects to the proposed permit.
819
9:11
NORTH CAROLINA REGISTER
September 1, 1994
PROPOSED RULES
M
the Director shall respond to EPA's
objection within 90 days after receipt of
EPA's objections.
The Director may return at any time
applications containing insufficient information to
complete the review.
Statutory Authority G.S. 143-215. 3(a)(1); 143-
215.107(a)(10); 143-215.108.
SECTION ,0600 - TRANSPORTATION
FACILITY PROCEDURES
.0607 APPLICATION PROCESSING
SCHEDULE
(a) The Division shall adhere to the following
schedule in processing applications for
transportation source permits:
(1) The Division shall send written
acknowledgement of receipt of the
permit application to the a pplicant
within 10 days of receipt of the
£21
a pplication.
The Division
shall review all permit
a pplications within 30 days of receipt of
the application to determine whether the
a pplication is complete or incomplete
for processing purposes. The Division
shall notify the applicant by letter:
(A) stating that the application as
submitted is complete and specifying
the completeness date,
(B) stating that the a pplication is incom-
plete, requesting additional informa-
tion and specifying the deadline date
by which the requested information is
to be received by the Division, or
(C) stating that the a pplication is incom-
plete and requesting that the applicant
rewrite and resubmit the a pplication.
If tlie Division does not notify the
applicant by letter dated within 30 days
of receipt of the a pplication that the
application is incomplete, the a pplica-
tion shall be deemed complete. A
completeness determination shall not
prevent the Director from requesting
additional information
when such
at a later date
nformation is considered
necessary to properly evaluate the
source, its air pollution abatement
equipment, or the facility. If the appli-
cant has not provided the requested
additional information by the deadline
specified in tlie letter requesting addi-
£3}
tional information, the Director may
return the a pplication to tlie applicant as
incomplete. The a pplicant may request
a time extension for submittal of the
requested additional information.
The Director shall send the draft permit
to public notice within 60 days after
receipt of a complete application or 10
days after receipt of requested addition-
al information, whichever is later.
£4}
15}
lA]
IB}
If the draft permit is not required to go
to public hearing, the Director shall
take final action on the permit within
30 days after the close of the public
comment period.
If the draft permit is required to go to
public hearing as a result of a request
for public hearing under Rule .0604(e)
of this Section, the Director shall:
send the draft permit to public hearing
within 45 days after approving the
request for the public hearing, and
take final action on tlie permit within
30 days after the close of the public
hearing.
(b) The days that fall between the sending out a
letter requesting additional information and receiv-
ing that additional information shall not be counted
in the schedules under Paragraph (a) of this Rule.
(c) The Director may return at any time applica-
tions containing insuflicient information to com-
plete the review.
Statutory Authority G.S 143-215. 3(a)(1); 143-
215.108; 143-215.109.
lyiotice is hereby given in accordance with G.S.
150B-21.2 that the Marine Fisheries Commission
intends to adopt rules cited as 15A NCAC 30
.0301 - .0310.
1 he proposed effective date of this action is
January 1, 1995.
1 he public hearings will be conducted at 7:00
p.m. on the following dates and locations:
November 1, 1994
NC AQUARIUM,
Manteo, North Carolina
NORTH CAROLINA REGISTER
September 1, 1994
820
PROPOSED RULES
November 2, 1994
Pitt Community College,
Highway US,
Room 153, Fulford Building,
Greenville, North Carolina
November 7, 1994
Jostyn Hall,
Carteret Community College,
3505 Arendell Street,
Morehead City, North Carolina
November 9, 1994
Archdale Building,
512 North Salisbury Street,
Raleigh, North Carolina
November 10, 1994
University of North Carolina,
Morton Hall,
Randall Street, Lot G,
Wilmington, North Carolina
considering petitions, urformation to be considered
in the petition, and how to settle votes that are
tied.
ISA NCAC 30 .0305 - EMERGENCY UCENSES;
outlines criteria for issuance of 30 days emergency
license.
ISA NCAC 30 .0306 - HARDSHIP UCENSES;
outlines criteria for issuance of a hardship license.
ISA NCAC 30 .0307 - APPEALS PANEL FINAL
DECISION; outlines procedures for issuance or
denials of an approved emergency or hardship
license.
ISA NCAC 30 .0308 - OFHaAL RECORD;
outlines what shall be the official record of the
decision.
ISA NCAC 30 .0309 - REASONS FOR REVOCA-
TION; sets forth reasons for revoking emergency
or hardship licenses.
ISA NCAC 30 .0310 - TEMPORARY EMERGEN-
CY VESSEL CRAB UCENSE; outlines procedures
and reasons for issuance of emergency vessel crab
licenses.
ALL PUBUC HEARINGS WILL BEGIN AT 7:00
p.m.
BUSINESS SESSION
The Marine Fisheries Commission will conduct a
Business Session on December 2-3, 1994, at the
MDS Center, 422 Raleigh Road, Smithfield, North
Carolina beginning at 9:00 a.m. on the morning of
December 2, 1994, to decide on these proposed
rules.
MXeason for Proposed Action:
ISA NCAC 30 .0301 - APPEALS PANEL MEM-
BERS AND CHAIR; allows for designees in place
of Chair of Marine Fisheries Commission and
Director of the Division of Marine Fisheries.
Requires appointment of such designees within
specified timeframe. Sets up procedures for
attendance and requires quorum.
ISA NCAC 30 .0302 - APPEALS PANEL MEET-
INGS; schedules meetings for set dates. Outlines
methods of presentations for petitioners.
ISA NCAC 30 .0303 - APPEAL PETITION AND
OTHER EVIDENCE; outlines criteria for contents
in petitions, where to submit petitions, time limit
for Division of Marine Fisheries to make recom-
mendation and time limit for responding to such
recommendation.
ISA NCAC 30 .0304 - CONSIDERATION OF
APPEAL PETITIONS; outlines timeframe for
{..comment Procedures: Comments and statements,
both written and oral, may be presented at the
hearings. Written comments are encouraged and
may be submitted to the Marine Fisheries Commis-
sion, P. O. Box 769, Morehead City, NC 28557.
These written and oral comments must be received
no later than 10:00 a.m., December I, 1994.
Oral presentation lengths may be limited depend-
ing on the number of people that wish to speak at
the public hearings.
tLdUor's Note: These Rulse were filed as tempo-
rary rules effective August 9, 1994 for a period of
180 days or until the permanent rule becomes
effective, whichever is sooner.
CHAPTER 3 - MARINE FISHERIES
SUBCHAPTER 30 - LICENSES, LEASES,
AND FRANCHISES
SECnON .0300 - LICENSE APPEAL
PROCEDURES
.0301 APPEALS PANEL MEMBERS AND
CHAIR
(a) If the Chairman of the Marine Fisheries
Commission and the Director of the Division of
Marine Fisheries do not intend to serve as mem-
bers of the Appeals Panel, they may each name a
821
9:11
NORTH CAROUNA REGISTER
September 1, 1994
PROPOSED RULES
designee and an alternative designee. All
designees and alternate designees shall be named
within five days of the effective date of these
Rules.
(b) A designee who is unable to attend a
meeting of the Appeals Panel shall notify his or
her alternate at least 24 hours before the meeting.
(c) The Chair of the Appeals Panel (Chair) shall
be the Chairman of the Marine Fisheries
Commission or any member of the A ppeals Panel
designated as Chair by the Chairman of the Marine
Fisheries Commission.
(d) Requests to vary from the time limits of
these Rules shall be determined on a case-by-case
basis by the Chair.
(e) The Appeals Panel shall not act upon a
petition without a quorum. Two or more members
of the Appeals Panel constitute a quorum.
Statutory Authority G.S. 113-134; 113-153. 1; 1993
(Regular Session 1994), c. 576, s. 3; 143B-289.4.
.0302 APPEALS PANEL MEETINGS
The Appeals Panel will hold regular meetings
and quarterly meetings.
(1) The A ppeals Panel shall conduct its
regular meetings on the first and third
Friday of each month unless the Marine
Fisheries Commission is scheduled to
meet on those dates. Regular meetings
may be conducted by telephone
conference call or in such other manner
as the Chair decides,
cancel meetings or
12}
£3}
The Chair may
call additional
meetings as required. Persons who wish
to attend a telephone conference call
meeting must make written request with
the Fisheries Director at least 10 working
days prior to the meeting.
The Appeals Panel shall conduct its
quarterly meetings in conjunction with
the quarterly meetings of the Marine
Fisheries Commission. The first A ppeals
Panel quarterly meeting shall be in
conjunction with the next Marine
Fisheries Commission meeting occurring
at least 30 days after the effective date of
these Rules.
Oral presentations of arguments and
evidence may be considered by the
M
Appeals Panel in rendering its decision in
accordance with the following provisions:
Answers, by persons other than legal
counsel, to questions asked by Appeals
Panel members during regular meetings
and quarterly meetings shall be
evidence;
(b) Oral arguments will only be heard at
the quarterly A ppeals Panel Meetings-
Oral arguments shall not exceed 15
minutes per party. The time provided
for argument may be shortened if the
Chair determines a shorter time is
necessary to dispose of all other matters
on the Panel's agenda;
(c) Information presented in an oral
argument is not evidence and shall not
be included in the official record; and
(d) The Division of Marine Fisheries shall
make tape recordings of all oral
arguments and presentations.
Statutory Authority G. S. 113-134; 113-153. 1; 1993
(Regular Session, 1994), c. 576, s. 3; 143B-289.4.
.0303 APPEAL PETITION AND OTHER
EVIDENCE
(a) Under the Statutes authorizing issuance of
special licenses in cases of emergencies or
hardships, the most important criterion is the
demonstration of emergency or hardship. The
Appeals Panel must and will deny petitions which
fail to demonstrate emergency or hardship
consistent with the provisions of 15A NCAC 30
.0305 and .0306.
(b) The contents of an appeal petition are as
follows:
(1) Petitions that do not contain the
following items will be returned to the
petitioner without being processed:
(A) A completed Appeals License
Application;
(B) A statement of the licensefs) being
requested;
(C) Where a vessel license is requested, a
copy of the registration/ documentation
information which identifies the
vessel;
(D) The petitioner's notarized signature;
and
(E) Where petitioners are not residents of
North Carolina, certification from the
fisheries agency of their resident state
or jurisdiction showing, for the time
period beginning July J^ 1991 to the
present, all licenses held and any
violations or convictions entered
against them, or the lack thereof.
(2) In addition, a petition shall include:
(A) A statement of emergency or hardship
9:11
NORTH CAROLINA REGISTER
September 1, 1994
822
PROPOSED RULES
consistent with the standards in these
Rules:
suspensions and
convictions of
(B) A list of license
revocations. and
fisheries offenses in
any state or
jurisdiction during the past three
years;
(C) The reason(s) for failure to obtain the
license(s) before July L, 1994;
(D) A list of commercial fishing
license(s). from any state or
jurisdiction, held by the petitioner
since July L, 1991. with identifying
license number and issuing agency;
and
(E) Request for oral argument, if desired.
(3) A petition may be accompanied by:
(A) Evidence demonstrating the extent to
which the petitioner relies on
commercial fishing as a livelihood,
such as tax records, sales records, trip
tickets, and similar information;
(B) Sworn affidavits by others verifying
or supporting the information in the
petition;
(C) Exhibits and any other evidence to be
offered in su pport of the a ppeal: and
(D) A statement waiving the o pportunity
to reply to the Division of Marine
Fisheries recommendation.
(c) Requests for oral arguments can only be
made in the appeal petition-
ed) Petitions, evidence, and supporting
information can only be filed with the Division of
Marine Fisheries at its offices in Morshead City or
by mailing to Post Office Box 769. Morehead
City. North Carolina 28557-0769. The petition
will not be processed until the petitioner provides
an original and four copies of the petition and
supporting information.
(e) The Division of Marine Fisheries will submit
its recommendation and any other relevant
information on each a ppeal to the A ppeals Panel
within 10 working days of the receipt of a
complete petition. On the same day the
recommendation is sent to the Appeals Panel, the
Division of Marine Fisheries shall serve a copy of
its recommendation on the petitioner by depositing
it in first class mail, hand delivery, or facsimile
delivery.
(f) Any reply to the Division of Marine
Fisheries recommendation must be filed with the
Division of Marine Fisheries within 10 days after
the recommendation is served. The petition will
not be processed until the petitioner provides an
original and four copies of the reply and
su pporting information.
Statutory Authority G. S. 113-134; 113-153. 1; 1993
(Regular Session 1994), c. 576, s. 3; 143B-289.4.
.0304 CONSIDERATION OF APPEAL
PETITIONS
(a) Petitions received by the Fisheries Director
15 working days before an A ppeals Panel meeting
shall be determined no later than the next meeting
if the petitioner waived the o pportunity to reply to
the Division of Marine Fisheries recommendation
in the petition. All other petitions shall be
determined no later than the first Appeals Panel
meeting occurring at least 10 days after the reply
to the Division of Marine Fisheries
recommendation is due to be filed.
(b) When a petitioner requests oral argument,
the petition shall be decided at the next quarterly
A ppeals Panel meeting occurring at least 15
working days after the petition is submitted.
When a petitioner requests oral argument and m
o pportunity to reply to the Division of Marine
Fisheries recommendation, the petition shall be
decided at the next quarterly A ppeals Panel
meeting occurring at least 10 days after the reply
is due to be filed.
(c) In deciding appeal petitions, the A ppeals
Panel will consider only information presented in
accordance with these Rules and the status report
by the Division of Marine Fisheries on the number
of licenses issued in each category.
(d) When the vote of the A ppeals Panel is tied,
the petition shall be decided at ^ next meeting of
the A ppeals Panel. Final decision on a petition
may only be deferred once under this provision.
Statutory Authority G. S. 113-134; 113-153. 1; 1993
(Regular Session 1994), a 576, s. 3; 143B-289.4.
.0305 EMERGENCY LICENSES
A 30-day emergency license may be issued upon
a showing that death, illness, or incapacity of a
licensee would make jt impossible to continue the
fishery operation unless an emergency license is
issued to the petitioner.
£1} Upon request by a petitioner, the Chair
may suspend or shorten any procedures
that would prevent the petition from
being considered at the next A ppeals
Panel meeting occurring not less than
three days after the request is made.
£2} An emergency license may not be
renewed.
823
9:11
NORTH CAROLINA REGISTER
September 1, 1994
PROPOSED RULES
(3) An emergency license does not qualify
the licensee to be issued a renewal
license pursuant to Section 3 (c) of
Chapter 576 of the 1993 (Regular Session
1994) Session Laws.
Statutory Authority G.S. 113-134; 113-153. 1; 1993
(Regular Session 1994), c. 576, s. 3; I43B-289.4.
.0306 HARDSfflP LICENSES
The following criteria will be applied in
approving or denying petitions based on hardship:
(1) A petition will be denied unless it
demonstrates at least one of the following
circumstances:
(a) For each license applied for, the
petitioner has held that license or an
equivalent commercial fishing license
from another state or jurisdiction in two
out of the past three years; and
petitioner can demonstrate extenuating
or extraordinary circumstances which
prevented him or her from obtaining
the North Carolina commercial fishing
license for 1993-1994;
(h) It can be demonstrated that petitioner
did not obtain a 1993-1994 license
because petitioner was on active
military duty outside the state and that
for two out of the three years previous
to going on active military duty,
petitioner held the license being applied
for;
(c) The petitioner has become 16 years of
age since June 30, 1994; has a history
of commercial fishing with their parent
or guardian; and holds a Shellfish or
Crab License;
£d} An immediate member of the
petitioner's family, who holds a current
license, has died, is incapacitated, or is
retiring from the commercial fishery;
the petitioner needs the license to
continue in that fishery operation; and
the family member will surrender the
license upon approval of the petition; or
(e) The petitioner can demonstrate facts
similar in hardship to the preceding
situations.
(2) Hardship and emergency licenses are
issued solely to the petitioner based upon
individual demonstration of need. A
petition may be denied if the petitioner is
unable to demonstrate a substantial effect
on his livelihood in the event the license
is denied.
(3) The petitioner has a history of fishing
law violations which would cause
petitioner to be ineligible for a license in
North Carolina or has a history of
substantial noncompliance with federal or
state laws, regulations, or rules for the
protection of marine and estuarine
resources in any stete or jurisdiction.
(4) The holder of a current and valid
hardship license on June 30 of the license
year has the same eligibility to renew the
license as persons not subject to the
moratorium.
Statutory Authority G.S. 113-134; 113-153.1; 1993
(Regular Session 1994), c. 576, s. 3; 143B-289.4.
.0307 APPEALS PANEL FINAL DECISION
(a) An approval of a petition shall be a final
decision that will be entered the same day it is
a pproved by the A ppeals Panel. Licenses
a pproved under these Rules shall be issued upon
payment of the required fee, subject to any
conditions imposed by the A ppeals Panel.
Licenses issued under these Rules shall be
specially denoted as emergency or hardship
licenses and shall state the revocation provisions of
these Rules and any other conditions imposed by
the A ppeals Panel.
(b) If a license is approved under 15A NCAC
30 .0306(l)(d), it will only be issued upon the
surrender of a license by the currently licensed
family member.
(c) Emergency licenses will only be issued by
the Division of Marine Fisheries at jts Morehead
City Office.
(d) Denials of licenses shall be issued within 10
working days of the decision by the A ppeals
Panel.
(e) The Appeals Panel shall issue a written order
setting forth the basis for each a pproval or denial
of a petition. For a hardship license petition, the
order shall set forth the grounds for the decision as
listed in ISA NCAC 30 .0306(n(a)-(e). When
the basis for the approval is 15A NCAC 30
.0306(l)(e), the order shall state the specific
grounds demonstrating hardship.
(f) An Appeals Panel denial becomes final either
upon petitioner's filing for judicial review under
G.S. 150B-43 et seq. or 30 days after the decision
is issued, whichever occurs first.
Statutory Authority G.S. 113-134; 113-153. 1; 1993
(Regular Session 1994), c. 576, s. 3; 143B-289.4.
9:11
NORTH CAROLINA REGISTER
September 1, 1994
824
PROPOSED RULES
.0308 OFFIOAL RECORD
The official record of an A pp>eals Panel decision
for judicial review shall consist of the following:
(1) The petition and any other items
submitted by the petitioner;
(2) The Division of Marine Fisheries
recommendation, and any supporting
information;
The Division of Marine Fisheries status
£3}
£41
£5}
report on license totals;
The petitioner's response, if any, to the
Division of Marine Fisheries
recommendation; and
The Appeals Panel final decision.
Statutory Authority G.S. 113-134; 113-153. 1; 1993
(Regular Session 1994), c. 576. s. 3; 143B-289.4.
.0309 REASONS FOR REVOCATION
The Appeals Panel shall revoke an emergency or
hardship license for either of the following
reasons:
(1) Material information submitted by the
petitioner and relied upon by the Appeals
Panel is determined to be false: or
(2) Any attempt is made to transfer such
license.
Statutory Authority G.S 113-134; 113-153.1; 1993
(Regular Session 1994). c. 576. s. 3; 143B-289.4.
.0310 TEMPORARY EMERGENCY VESSEL
CRAB LICENSES
(a) Vessel crab licenses may be transferred by
the Fisheries Director, for a period not to exceed
30 days, upon a showing of death, illness, or
incapacity'.
(b) A temporary emergency vessel crab license
does not qualify the licensee to be issued a renewal
license pursuant to Section 3 £cj of Chapter 576 of
the 1993 (Regular Session 1994) Session Laws.
Statutory Authority G.S. 113-134; 113-153. 1; 1993
(Regular Session 1994), c. 576, s. 3; 143B-289.4.
I\otice is hereby given in accordance with G.S.
150B-21.2 that the EHNR - Coastal Management
intends to amend rules cited as 15A NCAC 7H
.0104, .0309; 7 J .0403 and .0404.
1 he proposed effective date of this action is
February 1, 1995.
1 he public hearing will be conducted at 4:00
p.m. on September 22, 1994 at the Coast Line
Convention Center, 501 Nutt Street, Wilmington,
NC
M\.eason for Proposed Action:
ISA NCAC 7H .0104 and .0309 - The current
rules limit the ability of land owners to reconfigure
the proposed development on lots that have been
"grandfathered" from subsequent rule changes.
ISA NCAC 7 J .0403 and .0404 - The current
rules limit the eligibility of a CAMA permit appli-
cant to receive a time extension beyond the three-
year term of the permit.
K^omment Procedures : All persons interested in
this matter are invited to attend the public hearing.
The Coastal Resources Commission will receive
mailed written comments postmarked no later than
October 3, 1994. Any person desiring to present
lengthy comments is requested to submit a written
statement for inclusion in the record of proceed-
ings at the public hearing. Additional irformation
concerning the hearing or the proposals may be
obtained by contacting Dedra Blackwell, Div. of
Coastal Management. PO Box 27687, Raleigh, NC
27611-7687, (919) 733-2293.
CHAPTER 7 - COASTAL MANAGEMENT
SUBCHAPTER 7H - STATE GUIDELINES
FOR AREAS OF ENVIRONMENTAL
CONCERN
SECTION .0100 - INTRODUCTION AND
GENERAL COMMENTS
.0104 DEVELOPMENT INITIATED PRIOR
TO EFFECTIVE DATE OF
REVISIONS
(a) The following Rules shall be used to deter-
mine whether the revisions to guidelines for
development in areas of environmental concern
(hereinafter referred to as revisions), with an
effective date of June 1, 1979, shall apply to a
proposed development.
(1) In the case of a development for which
a CAMA f)ermit was required prior to
June 1, 1979, the revisions shall not be
applicable if a complete and sufficient
application for a CAMA permit was
82S
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PROPOSED RULES
filed and accepted before June 1, 1979.
However if the application should lapse
or be denied, thereby requiring a new
application after June 1, 1979, or if the
application is modified or renewed after
June 1, 1979, the revisions shall be
made applicable.
(2) In the case of a development for which
no CAMA permit was required prior to
July 15, 1979, the revisions shall not be
applicable if all legally required permits
have been applied for and accepted in
accordance with the applicable rules of
the agency responsible for the permit.
However, if the application should
lapse or be denied, thereby requiring a
new application after July 15, 1979, or
if the application is modified or re-
newed after July 15, 1979, the revisions
shall be applicable.
(3) In those cases where a CAMA major
permit was issued before June 1, 1979,
for a major development which includ-
ed platted lots, the new standards shall
apply to such platted lots only to the
maximum extent possible without effec-
tively prohibiting the intended use of
those lots. In order for this Rule to
apply, the following conditions must be
met:
(A) the lot on which the proposed devel-
opment is to be located shall have
been accurately shown on the major
development permit application and
the boundaries must not have been
significantly altered.
(B) the lot on which the proposed devel-
opment is to be located shall have
been suitable for the intended use
according to the AEC guidelines in
effect at the time the major permit
was issued.
(C) a minor development permit must be
applied for and received according to
the normal minor permit process
before development can begin.
(D) this Rule shall apply only to develop-
ment for which a permit application is
submitted prior to expiration of the
major development permit issued
before June 1, 1979.
(4) In those cases where any necessary
local approval was issued for a pro-
posed subdivision development prior to
July 15, 1979, the Division of Coastal
Management advised the developer in
writing where to locate the ocean set-
back line for the proposed subdivision,
and the proposed subdivision develop-
ment was recorded in the county regis-
try prior to July 15, 1979, with the
ocean setback determined by the Divi-
sion of Coastal Management, any new
standards regarding oceanfront setbacks
shall apply to the platted lots within the
proposed subdivision only to the maxi-
mum extent possible without effectively
prohibiting the intended use of those
lots. In order for this Rule to apply,
the following conditions must be met:
(A) the lot(s) on which the proposed
development is to be located shall
have been accurately shown on an
approved local plat and the boundaries
must not have been significantly
altered;
(B) the lot(s) on which the proposed
development is to be located shall
have been suitable for the intended
use according to the AEC guidelines
in effect at the time the plat was
approved; and
(C) a minor development permit(s) must
be applied for and received according
to the normal minor permit process
before development can begin.
(b) The oceanfront setback provisions specifical-
ly applicable to large structures, as set forth by
Rule .0306(a)(4) of this Subchapter, shall apply
only to development applications received on or
after November 1, 1983. Further, Rule
.0306(a)(4) of this Subchapter shall only apply to
the maximum extent possible without eflFectively
prohibiting the intended use of the property in the
following situations:
(1) the completion of projects that had
received valid CAMA permits prior to
November 1, 1983, provided that per-
mit renewals, modification and transfer
requests for these projects made pursu-
ant to 15A NCAC 7J .0404, .0405 and
.0406 and 15A NCAC 7E .0105 shall
be considered under the setback rules
applicable at the time of original permit
issuance, and no renewals or extensions
of pre-existing permits shall be made
beyond the expiration period unless
either there has been substantial prog-
ress on construction or no material
change in the physical conditions at the
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September 1, 1994
826
PROPOSED RULES
project site (as is provided by 15A
NCAC 7J .0403); and
(2) the completion of projects that were
outside of CAMA permit jurisdiction
prior to November 1, 1983, provided
that all other required state and local
permits had been applied for in
accordance with the rules of the
agencies responsible for such permits
and that the developer has materially
changed his or her position in good
faith reliance on such development
approvals. In all instances, such
development must be consistent with all
other provisions of this Subchapter.
(c) In the case of subdivisions or projects which
have received either all required final or
preliminary local approvals or a CAMA major
development permit prior to May 27, 1988, and
have therein met all applicable CAMA setback
requirements as of May 27, 1988, the updated
oceanfront erosion rates approved by the
Commission on July 29, 1988, and effective on
November 1, 1988, shall only apply to the
maximum extent feasible. For these previously
approved lots and projects, the erosion rate
existing as of May 27, 1988, shall be applied in
determining minimum oceanfront setbacks for
purposes of subsequent approved construction or
development prior to the next erosion rate update.
(d) Reconfiguration of lots and projects that
have a grandfather status under Paragraphs (b) and
(c) of this Rule will be allowed provided that the
following conditions are met:
(1) Development is setback from the first
line of stable natural vegetation a
distance no less than that required by
the a pplicable exceptions, and
(2) Reconfiguration will not result in an
increase in the number of buildable lots
within the Ocean Hazard AEC or have
other adverse environmental
consequences.
Statutory Authority G.S. 113A-107; 113A-113;
113A-124.
SECTION .0300 - OCEAN HAZARD AREAS
.0309 USE CTA>fDARDS FOR OCEAN
HAZARD AREAS: EXCEPTIONS
(a) The following types of development may be
permitted seaward of the oceanfront setback
requirements of Rule .0306(a) of the Subchapter if
all other provisions of this Subchapter and other
state and local regulations are met:
(1) campgrounds that do not involve
substantial permanent structures;
(2) parking areas with clay, packed sand or
similar sur&ces;
(3) outdoor tennis courts;
(4) elevated decks not exceeding a footprint
of 500 square feet;
(5) beach accessways consistent with Rule
.0308(c) of this Subchapter;
(6) unenclosed, uninhabitable gazebos with
a footprint of 200 square feet or less;
(7) uninhabitable, single-story storage sheds
with a footprint of 200 square feet or
less;
(8) temporary amusement stands; and
(9) swimming pools.
In all cases, this development shall only be
permitted if it is landward of the vegetation line;
involves no significant alteration or removal of
primary or frontal dunes or the dune vegetation;
has overwalks to protect any existing dunes; is not
essential to the continued existence or use of an
associated principal development; is not required
to satisfy minimum requirements of local zoning,
subdivision or health regulations; and meets all
other non-setback requirements of this Subchapter,
(b) Where strict application of the oceanfront
setback requirements of Rule .0306(a) of this
Subchapter would preclude placement of
permanent substantial structures on lots existing as
of June I, 1979, single family residential
structures may be permitted seaward of the
applicable setback line in ocean erodible areas, but
not inlet hazard areas, if each of the following
conditions are met:
(1) The development is set back from the
ocean the maximum feasible distance
possible on the existing lot and the
development is designed to minimize
encroachment into the setback area;
(2) The development is at least 60 feet
landward of the vegetation line;
(3) The development is not located on or in
front of a frontal dune, but is entirely
behind the landward toe of the frontal
dune;
(4) The development incorporates each of
the following design standards, which
are in addition to those required by
Rule .0308(d) of this Subchapter.
(A) All pilings have a tip penetration that
extends to at least four feet below
mean sea level;
(B) The footprint of the structure be no
827
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September 1, 1994
PROPOSED RULES
more than 1,000 square feet or 10
percent of the lot size, whichever is
greater.
(5) All other provisions of this Subchapter
and other state and local regulations are
met. If the development is to be
serviced by an on-site waste disposal
system, a copy of a valid permit for
such a system must be submitted as part
of the CAMA permit application.
(c) Reconfiguration of lots and projects that have
a grandfather status under Paragraph (h) of this
Rule will be allowed provided that the following
conditions are met:
(1) Development is setback from the first
line of stable natural vegetation a
distance no less than that required by
the a pplicable exception;
£21 Reconfiguration will not result in an
increase in the number of buildable lots
within the Ocean Hazard AEC or have
other adverse environmental
consequences; and
(3) Development on lots qualifying for the
exception in Paragraph (h) of this Rule
must meet the requirements of
Paragraphs (1) through (5) of that
Paragraph.
For the purposes of this Rule, an existing lot is a
lot or tract of land which, as of June 1, 1979, is
specifically described in a recorded plat and which
cannot be enlarged by combining the lot or tract of
land with a contiguous lot(s) or tract(s) of land
under the same ownership. The footprint is defined
as the greatest exterior dimensions of the structure,
including covered stairways, when extended to
ground level.
Statutory Authority G.S. 1 13A-107(a);
113A-107(b); 113A-113(h)(6)a.; 113A-113(b)(6)b;
113A-113(h)(6)d.; 113A-124.
SUBCHAPTER 7J - PROCEDURES FOR
HANDLING MAJOR DEVELOPMENT
PERMITS: VARIANCE REQUESTS:
APPEALS FROM MINOR DEVELOPMENT
PERMIT DECISIONS: AND
DECLARATORY RULINGS
SECTION .0400 - FINAL APPROVAL
AND ENFORCEMENT
.0403 DEVELOPMENT PERIOD/
COMMENCEMENT/CONTINUATION
(a) All devolopmont initiated pursuant to a
CAMA and/or dredg e and fill p e rmit shall bo
oomplotod by — D e o e mb e r — M — of the third y e ar
following — tbe — yeaf — ef — p> e rmit — ioouanoo. New
CAMA and dredge and fill permits shall expire on
December 31 of the third year following the year
of permit issuance.
{b) — Comm e nc e m e nt of D e v e lopm e nt in Oo e an
Hazard AEC. No work shall b e gin until th e
oo e anfront s e tback r e quir e ment can be establish e d.
Wh e n th e poosesBor of an approved p e rmit or a
ruling of e xc e ption is r e ady to b e gin oonstruotion,
h e shall arrang e a m ee ting with th e appropriat e
Local Permit Offioor or Fi e ld Consultant at th e site
to d e t e rmin e the oo e anfront s e tback. — This ootbaok
d e t e rmination shall r e plac e the one done at the
time th e f> e rmit wm proc e ss e d and approv e d and
oonstruotion must b e gin within a p> e riod of 60 day s
from th e dat e of that meeting. — In the ooso of a
major shor e lin e chang e within that p e riod a n e w
s e tback — d e t e rmination — wiH — be — required — before
oonstruotion begins. UfHjn oompl e tion of th e
m e asur e m e nt, th e Local P e rmit Offio e r or Fi e ld
Consultant will issu e a written statem e nt to the
p e rmitt ee c e rtifying th e sam e .
(b) Development After Permit Expiration Illegal.
Any development done shall be considered
unpermitted and shall constitute a violation of G.S.
113A-118 or G^ 113-229. Any development to
be done after permit expiration shall require either
a new permit, or. renewal of the original permit
according to 15A NCAC 7J .0404 with the
exception of Paragraph (e) of this Rule.
{e) — Work don e Aft e r Expiration Illegal. — Asy
work don e pursuant to an e xpir e d p e rmit shall b e
consid e r e d unp e rmitt e d work and s hall constitut e
a — violation — ef — GrS: — 113A 11 8 — and/or — GtSt
113 229.
(c) Commencement of Development in Ocean
Hazard AEC. No development shall begin until
the oceanfront setback requirement can be
established. When the possessor of a permit or a
ruling of exception is ready to begin construction.
he shall arrange a meeting with the appropriate
permitting authority at the site to determine the
oceanfront setback. This setback determination
shall replace the one done at the time the permit
was processed and a pproved and construction must
begin within a period of 60 days from the date of
that meeting. In the case of a major shoreline
change within that period a new setback
determination will be required before construction
begins. Upon completion of the measurement, the
permitting authority will issue a written statement
to the permittee certifying the same.
(d) Continuation of Development in the Ocean
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September 1, 1994
828
PROPOSED RULES
Hazard AEC . Once work development has begun
under proper authorization, development in the
Ocean Hazard AEC may continue beyond the
authorized development {jeriod if, in the opinion of
the Lx)oal P e rmit Offioor or Fi e ld Conoultant as
appropriat e , permittin g authority, substantial
progress has been made and is continuing
according to customary and usual building
standards and schedules. In most cases, substantial
progress begins with the placement of foundation
pilings.
(e) — P e rmit Expiration. — Whore no d e v e lopm e nt
ifi — initiat e d — during th e authoriz e d d e velopm e nt
p)eriod, th e p e rmit s hall expir e at th e oonolusion of
that p> e riod. — Any Bube e quont developm e nt activity
shall require a n e w p e rmit.
(e) Any permit that has been suspended pursuant
to G.S. 1 13A- 121.1 as a result of a contested case
petition or by order of superior court for a period
longer than six months shall be extended at the
applicant's written request for a period equivalent
to the period of permit suspension, but not to
exceed the development period authorized under
Paragraph (a) of this Rule.
(f) An a pplicant may voluntarily suspend
development under an active permit that is the
subject of judicial review by filing a written notice
with the Department once the review has started.
An applicant shall obtain an extension of said
permit if the permitting authority finds:
(1) That the a pplicant notified the
permitting authority in writing of the
voluntary suspension;
(2) The period during which the permit had
been subject to judicial review is
greater than six months;
(3) The applicant filed a written request for
an extension of the development period
once the judicial review had been
completed; and
(4) The applicant undertook no
development after filing the notice of
suspension.
The period of permit extension shall be equivalent
to the length of the judicial review proceeding, but
not to exceed the development period authorized
under Paragraph (a) of this Rule.
Statutory Authority G.S. 113A-118.
.0404 DEVELOPMENT PERIOD
EXTENSION
(a) Th e Departm e nt, in th e oos e of a major
d e velopment and/or dr e dg e and fill p e rmit, or th e
looal — p e rmit officer, — in th e oos e of a minor
d e v e lopm e nt permit, may extend th e authorized
d e v e lopm e nt {p e riod for a p e riod not to oxoood one
y e ar for initial — d e v e lopm e nt or ten y e aro for
moint e nano e and r e pair s upon r e c e ipt of a oignod
and dat e d r e qu e st from th e applicant oontaining the
following: Where no development has been
initiated during the development period, the
permitting authority shall extend the authorized
development period for no more than two years
upon receipt of a signed and dated request from
the applicant containing the following:
(1) a statement of the intention of the
applicant to complete the work within a
reasonable time;
(2) a statement of the reasons why the
project will not be completed before the
expiration of the original current
permit; asd
(3) a statement that there has been no
change of plans since the issuance of
the original permit, permit other than
changes that would have the effect of
reducing the scope of the project, or.
previously approved permit
modifications;
(4) notice of an^ change in ownership of
the property to be developed and a
request for transfer of the permit if
a ppropriate; and
(5) a statement that the project is in
compliance with all conditions of the
current permit-
Where substantial development, either within or
outside the AEC. has begun and is continuing on
a permitted project, the permitting authority shall
grant as many two year extensions as necessary to
complete the initial development. Renewals for
maintenance and repairs of previously approved
projects may be granted for periods not to exceed
10 years.
(b) When an extension request has not met the
criteria of Paragraph (a) of this Rule, the Tbe
Department may circulate major d e v e lopm e nt and
dr e dg e and fill ext e nsion requ e sts the request to
the commenting state agencies along with a copy
of the original permit application. Commenting
agencies will be given three weeks in which to
comment on the extension request. Upon the
expiration of the commenting period the
Department will notify the applicant promptly of
its actions on the extension request. An e xtension
r e qu es t may b e d e ni e d upon making finding s as
r e quir e d — m — Gr* 113A 120 — and/or — GtSt
113 229( e ). — Changes in oiroumstonoes and/or in
d e v e lopm e nt standards will b e oonoid e r e d by th e
829
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NORTH CAROLINA REGISTER
September 1, 1994
PROPOSED RULES
Dopartmont in making a deoioion on an e xt e nsion
request.
(c) A — minor — development Notwithstanding
Paragraphs (a) and fb) of this Rule, an extension
request may be denied on making findings as
required in either G.S. 113A-120 or OS^ 113-
229(e) . Changes in circumstances and/ or or in
development standards will be considered and
applied to the maximum extent practical by the
local permit offic e r permitting authority in making
a decision on an extension request.
(d) The applicant for a major development
extension request must submit, with the request, a
check or money order payable to the Department
in the sum of fifty dollars ($50.00).
(e) Modifications to extended permits may be
considered pursuant to 15A NCAC 7J .0405.
Statutory Authority G. S.
113A-1 24(c)(5).
113A-119:
I\otice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Wildlife Re-
sources Commission intends to amend rules cited
as 15A NCAC lOB .0106; lOF .0310 - .0311,
.0323. .0365.
Ihe proposed effective date of this action is
December 1, 1994.
Ihe public hearing will be conducted at 10:00
a.m. on September 19, 1994 at the Archdale
Building, Room 332, 3rd Floor, 512 N. Salisbury
St., Raleigh. NC 27604-1 1 88.
Keason for Proposed Action:
ISA NCAC lOB .0106 - To allow deer taken
during depredation to be donated to charitable
organizations.
ISA NCAC lOF .0310 - To establish a restricted
swimming area on a designated body of water.
ISA NCAC 10F.031I, .0323, .036S - To establish
a restricted speed zone on a designated body of
water.
Comment Procedures: Interested persons may
present their views either orally or in writing at
the hearing. In addition, the record of hearing
will be open for receipt of written comments from
September 2, 1994 to October 3, 1994. Such
written comments must be delivered or mailed to
the N. C. Wildlife Resources Commission, 512 N.
Salisbury Street, Raleigh. NC 27604-1188.
CHAPTER 10 - WILDLIFE RESOURCES
AND WATER SAFETY
SUBCHAPTER lOB - HUNTING AND
TRAPPING
SECTION .0100 - GENERAL
REGULATIONS
,0106 WILDLIFE TAKEN FOR
DEPREDATIONS OR
ACCIDENTALLY
(a) Depredation Permit
(1) Endangered or Threatened Species. No
permit shall be issued to take any en-
dangered or threatened species of wild-
life listed under 15A NCAC 101 by
reason of depredations to property. An
individual may take an endangered or
threatened species in immediate defense
of his own life or of the lives of others
without a permit. Any endangered or
threatened species which may constitute
a demonstrable but nonimmediate threat
to human safety shall be reported to a
federal or state wildlife enforcement
officer, who, upon verification of the
report, may take or remove the speci-
men as provided by 15A NCAC 101
.0002.
(2) Other Wildlife Species. Except as
provided in Subparagraph (1) of this
Paragraph, the executive director of the
Wildlife Resources Commission may,
upon application of a landholder and
after such investigation of the circum-
stances as he may require, issue a
permit to such landholder to take any
species of wildlife which is or has been
damaging or destroying his property
provided there is evidence of substantial
property damage. No permit may be
issued for the taking of any migratory
birds and other federally protected
animals unless a corresponding valid
U.S. Fish and Wildlife Service depreda-
tion permit has been issued. The per-
mit shall name the species allowed to
be taken and, in the discretion of the
Executive Director, may contain limita-
tions as to age, sex or any other condi-
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September 1, 1994
830
PROPOSED RULES
tion within the species so named. The
permit may be used only by the land-
holder, except that, upon written re-
quest of the landholder and when it is
conclusively determined on the basis of
information submitted by him that he is
incapable of accomplishing the neces-
sary control without help, the names of
additional persons may be entered upon
the permit by the Executive Director as
authorized users.
(3) Taking Without a Permit. Except as
provided in Subparagraph (1) of this
Paragraph, a landholder may take wild-
life except migratory birds and other
federally protected animals upon his
own land without a permit during
closed season on the species involved
only when such wildlife is in the act of
damaging or destroying the property of
such landholder.
(b) Term of Permit. Each depredation permit
issued by the Executive Director shall have entered
thereon a date or time of expiration after which
date or time the same shall become invalid for any
purpose, except as evidence of lawful possession
of any wildlife that may be retained thereunder.
(c) Manner of Taking
(1) Taking Without a Permit. Wildlife
taken without a permit while commit-
ting depredations to property may,
during the open season on the species,
be taken by the landholder by any
lawful method. During the closed
season such depredating wildlife may
be taken without a permit only by the
use of firearms.
(2) Taking With a Permit. Wildlife taken
under a depredation permit may be
taken only by the method or methods
specifically authorized by the permit.
The only methods that may be autho-
rized in taking game species, other than
foxes, is by the use of firearms and live
traps. The permit may authorize the
taking of foxes, furbearing animals, and
nongame animals or birds by the use of
firearms or traps, including steel traps.
When trapping is authorized, in order
to limit the taking to the intended pur-
pose, the permit may specify a reason-
able distance from the property sought
to be protected, according to the partic-
ular circumstances, within which the
traps must be set. The Executive Di-
rector may also state in a permit autho-
rizing trapping whether or not bait may
be used and the type of bait, if any,
that is authorized. In addition to any
trapping restrictions that may be con-
tained in the permit the method of
trapping must be in accordance with the
requirements and restrictions imposed
by G.S. 113-291.6. No depredation
permit shall authorize the use of poi-
sons or pesticides in taking wildlife
except in accordance with the provi-
sions of the North Carolina Pesticide
Law of 1971, the Structural Pest Con-
trol Act of 1955, and Article 22A of
Chapter 113 of the General Statutes of
North Carolina. No depredation permit
shall authorize the taking of wildlife by
any method by any landholder upon the
lands of another.
(3) Intentional Wounding. It is unlawful
for any landholder, with or without a
depredation permit, intentionally to
wound a wild animal in a manner so as
not to cause its immediate death as
suddenly and humanely as the circum-
stances permit,
(d) Disposition of Wildlife Taken
(1) Generally. Except as provided by the
succeeding Subparagraphs of this Para-
graph, any wildlife killed accidentally,
without a permit while committing
depredations, or under a depredation
permit, shall be buried or otherwise
disposed of in a safe and sanitary man-
ner on the property of the landholder in
whose name the permit is issued or who
kills such wildlife while committing
depredations.
(2) Deer. Any landholder who kills a deer
under a currently valid depredation
permit for deer must report such kill
within 24 hours and before the deer is
butchered for consumption to a wildlife
enforcement officer, who upon deter-
mining that the kill was lawfully made
within the scope of the permit and if so
requested by the permittee, shall pro-
vide the permittee a written authoriza-
tion for his own private use or the use
by a charitable organization of the
edible portions of the carcass. The
nonedible portions of the carcass, in-
cluding head, hide, feet, and antlers,
shall be disposed of as specified in
831
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PROPOSED RULES
Subparagraph (1) of this Paragraph or
turned over to a wildlife enforcement
officer for disposition. When a deer is
accidentally killed on a road or highway
by reason of collision with a motor
vehicle, the law enforcement officer
who investigates the accident shall,
upon request of the operator of the
vehicle, provide such operator a written
permit authorizing him to possess and
transport the carcass of such deer for
his personal and lawful use, including
delivery of such carcass to a second
person for his private use or the use by
a charitable organization upon endorse-
ment of such permit to such person or
organization by name and when no
money or other consideration of value
is received for such delivery or
endorsement.
(3) Fox. Any fox killed accidentally by a
dog or dogs, motor vehicle, or
otherwise shall be disposed of as
provided by Subparagraph (1) of this
Paragraph. Any fox killed under a
depredation permit may be disposed of
in the same manner or, upon
compliance with the fiir tagging
requirements of 15A NCAC lOB .0400,
the carcass or pelt thereof may be sold
to a licensed fiir dealer. Any live fox
taken under a depredation permit may
be sold to a licensed controlled hunting
preserve for fox in accordance with
G.S. 113-273(g).
(4) Furbearing Animals. The carcass or
pelt of any furbearing animal killed
during the open season for taking such
furbearing animal either accidentally or
for control of depredations to property,
whether with or without a permit, may
be sold to a licensed fur dealer
provided that the person offering such
carcass or pelt for sale has a valid
hunting or trapping license, provided
further that, bobcats and otters may
only be sold upon compliance with any
required fur tagging requirement set
forth in 15A NCAC lOB .0400.
(5) Nongame Animals and Birds.
Nongame animals or birds killed
accidentally or for control of
depredations may be disposed of as
provided by Subparagraph (1) of this
Paragraph or in any other safe and
sanitary manner.
(e) Reporting Requirements. The killing and
method of disposition of every game animal and
game bird, every furbearing animal, and every
nongame animal or nongame bird for which there
is no open season, when killed for committing
depredations to property, either with or without a
permit, shall be reported to the Wildlife Resources
Commission within 24 hours following the time of
such killing, except that when the carcass or pelt
of a fox, killed under a depredation permit, or of
a furbearing animal, killed with or without a
permit, is lawfully sold to a licensed fur dealer in
this State the fur dealer is required to report the
source of acquisition and no report is required of
the seller.
Statutory Authority G.S. 113-134; 113-273;
113-274; 113-291.4; 113-291.6; 113-300.1;
113-300.2.
SUBCHAPTER lOF - MOTORBOATS AND
WATER SAFETY
SECTION .0300 - LOCAL WATER SAFETY
REGULATIONS
.0310 DARE COUNTY
(a) Regulated Areas. This Rule applies to the
following waters and portions of waters:
(1) Manteo. Doughs Creek adjacent to
Shallowbag Bay and all canals situated
within the territorial limits of the Town
of Manteo.
(2) Hatteras. The waters of Hatteras
Harbor and Muddy Creek bounded on
the north and south by the high-water
mark, on the west by a straight line
between channel markers number 20
and 1 7, and on the east by the mouth of
Muddy Creek at Sandy Bay.
(3) Mann's Harbor. The waters of Ferry
Dock Road Canal.
(4) Nags Head:
(A) Those waters contained within the
canals of Old Nags Head Cove
Development;
(B) The Roanoke Sound inlets at Pond
Island on either side of Marina Drive
extending north from US 64-264.
(5) Wanchese:
(A) The waters of Wanchese Harbor;
(B) The Canal from its beginning where it
connects with the Roanoke Sound
south of the dead end road SR 1141
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832
PROPOSED RULES
extending northwest roughly parallel
to SR 1141 and SR 1142, then
westward roughly parallel to NC 345,
and finally curving to the southwest
roughly parallel to the C.B. Daniels
Road to its end.
(6) Stumpy Point Canal. That portion of
Stumpy Point Canal begiiming at the
Wildlife Resources Commission boating
access area and extending inland for a
distance of 3,600 feet.
(7) Stumpy Point Basin. That portion of
the Stumpy Point Basin, at the head of
the Stumpy Point Bay, which is next to
Highway 264 in the dock area and
designated by the appropriate markers.
(8) Town of Southern Shores. The waters
contained in the canals and lagoons
within the territorial limits of the Town
of Southern Shores.
(9) Colington Harbour. The waters
contained in the canals of Colington
Harbour.
(10) Kitty Hawk. Those waters contained in
the canals of Kitty Hawk Landing
Subdivision.
(11) Washington Baum Bridge. Those
waters of the Roanoke Sound from
marker 24B north of the bridge to
marker 24A south of the bridge, and 50
yards east of the navigation span west
to the shore as designated by the
appropriate markers.
(12) Colington Island. The waters contained
in an area beginning at the bath house
and recreation center on the western
shore of Colington Island, running 600
feet in a northerly direction and
extending 300 feet into Albemarle
Sound as marked.
(b) Speed Limit. No person shall of>erate any
motorboat or vessel at greater than no-wake speed
within any of the regulated areas described in
Paragraph (a) of this Rule.
(c) Restricted Swimming Area. No person
operating or responsible for the operation of any
vessel, surfboard, water skis, or jet skis shall
permit the same to enter any marked swimming
area described in Subparagraph (12) of Paragraph
ia) of this Rule.
(d) (e) Placement and Maintenance of Markers.
Subject to the approval of the United States Coast
Guard and the United States Army Corps of
Engineers, the following agencies are designated
suitable agencies for placement and maintenance of
markers implementing this Rule as to the regulated
areas listed in the several Subparagraphs of
Paragraph (a) of this Rule:
(1) the Board of Commissioners of the
Town of Manteo as to the areas
indicated in Subparagraph (1);
(2) the Board of Commissioners of Dare
County as to the areas indicated in
Subparagraphs (2) through (7), (9) and
(11);
(3) the Board of Commissioners of the
Town of Southern Shores as to the
areas indicated in Subparagraph (8);
(4) the Board of Commissioners of the
Town of Kitty Hawk as to the areas
indicated in Subparagraph (a)(10).
Statutory Authority G.S. 75A-3; 75A-15.
.0311 GRANVILLE: VANCE AND WARREN
COUNTIES
(a) Definitions. In addition to the definitions set
forth in Paragraph (b) of Rule .0301 of this
Section, the following definitions shall apply in
this Rule:
(1) Corps. Corps of Engineers, United
States Army;
(2) Reservoir. John H. Kerr Reservoir in
Granville, Vance and Warren Counties.
(b) Speed Limit Near Ramps. No person shall
operate a vessel at greater than no-wake speed
within 50 yards of any concrete boat launching
ramp located on the reservoir in said counties.
(c) Speed Limit in Mooring Areas. No person
shall operate a vessel at greater than no-wake
speed while within a designated mooring area
established by or with the approval of the Corps
on the waters of the reservoir in said counties.
(d) Restricted Swimming Areas. No p)erson
operating or responsible for the operation of a
vessel shall permit it to enter any designated
swimming area established by or with the approval
of the Corps on the waters of the reservoir in said
counties.
(e) Speed Limit at Kimball Point. No person
shall operate a vessel at greater than no-wake
speed within 50 yards of the shoreline in the
northernmost cove of the Kimball Point Recreation
Area in the reservoir, such recreation area being at
the western end of SR 1204 in Warren County.
(f) Speed Limit at Lower Mill Creek. No
person shall operate a vessel at greater than
no-wake speed beginning at a point on the eastern
side of Lower Mill Creek where it intersects the
North Carolina - Virginia state line, running across
833
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September 1, 1994
PROPOSED RULES
the creek with said state line and then running in
a southerly direction on both the east and west
sides of the creek to the head waters and including
all waters of the creek south of the state line.
(p) 4^ Placement and Maintenance of Markers.
The Corps is designated a suitable agency for
placement and maintenance of markers
implementing this Rule. The perimetere of
designated swimming areas must be marked with
float lines which, in conjunction with the
shoreline, form completely enclosed areas. In
addition, supplementary standards as set forth in
Rule .0301(g)(2) to (7) and (9) of this Section shall
apply.
Statutory Authority G.S. 75A-3; 75A-15.
.0323 BURKE COUP-JTY
(a) Regulated Areas. This Rule applies only to
the following lakes or portions of lakes which lie
within the boundaries of Burke County:
(1) Lake Hickory;
(2) Lake James;
(3) Lake Rhodhiss.
(b) Speed Limit. No person shall operate a
vessel at greater than no-wake speed within 50
yards of any designated and marked public boat
launching ramp, bridge, marina, boat storage
structure, boat service area, dock or pier while on
the regulated areas described in Paragraph (a) of
this Rule or within 50 yards of any designated and
marked private boat launching ramp, bridge,
marina, boat storage structure, boat service area,
dock or pier around the Holiday Shores
Subdivision on Lake James or within 50 yards of
the Lake James Campground^ or within 50 yards
of the community docks at Laurel Pointe
subdivision .
(c) Speed Limit in Mooring Areas. No person
shall operate a vessel at greater than no-wake
speed while within a marked mooring area
established with the approval of the Executive
Director, or his representative, on the regulated
areas described in Paragraph (a) of this Rule.
(d) Restricted Swimming Areas. No person
operating or responsible for the operation of a
vessel shall permit it to enter any marked public
swimming area established with the approval of the
Executive Director, or his representative, on the
regulated areas described in Paragraph (a) of this
Rule.
(e) Placement and Maintenance of Markers.
The Board of Commissioners of Burke County is
designated a suitable agency for placement and
maintenance of the markers implementing this
Rule, subject to the approval of the United States
Coast Guard and the United States Army Corps of
Engineers, if applicable. With regard to marking
the regulated areas described in Paragraph (a) of
this Rule, all of the supplementary standards listed
in Rule .0301(g) of this Section shall apply.
Statutory Authority G.S. 75A-3; 75A-15.
.0365 TYRRELL COUNTY
(a) Regulated Area. This Rule applies to the
following waters in Terrell County:
(1) That portion of the Scuppemong River
from 3(X) yards west of the Highway 64
bridge to 100 yards east of the High-
way 64 bridge as designated by the
appropriate markers.
(2) That portion of the Scuppemong River
from the Columbia Boat Ramp extend-
ing 200 feet into the river as designated
by the a ppropriate markers.
(b) Sjjeed Limit. It is unlawful to operate a
vessel at greater than no-wake speed in the regulat-
ed areas described in Paragraph (a) of this Rule.
(c) Placement and Maintenance of Markers.
The Board of Commissioners of TVrrell County is
designated as the suitable agency for the placement
and maintenance of the markers implementing this
Rule.
Statutory Authority G.S. 75A-3; 75A-15.
jyiotice is hereby given in accordance with G.S.
150B-21.2 that the EHNR - Commission for Health
Services intends to amend rule cited as 15A NCAC
19A .0502.
A he proposed effective date of this action is
January 1, 1995.
1 he public hearing will be conducted at 1:30
p.m. on October 20, 1994 at the Groundfloor
Hearing Room, Archdale Building, 512 N. Salis-
bury Street, Raleigh, NC.
MVeason for Proposed Action: lb change the
administration fee that physician 's who administer
state-supplied childhood vaccines may charge for
their services. This change is necessary because
of new federal regulations regarding the distribu-
9:11
NORTH CAROLINA REGISTER
September 1, 1994
834
PROPOSED RULES
tion and administration of federally-purchased
vaccines. The current rules allow physician's to
charge no more than $15.00 for one dose of state-
supplied vaccine and $5. 00 for each additional
dose, up to a maximum of $25. 00. the Health
Care Financing Administration (HCFA) has set the
new rate for North Carolina at $12.15 per dose of
vaccine administered. This rule change will have
no fiscal impact on state or local government. The
new administration fee must be in place by Octo-
ber 1. 1994.
L^omment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to Grady L.
Balentine, Department of Justice, PO Box 629,
Raleigh, NC 27602-0629. All written comments
must be received by November 2, 1994. Persons
who wish to speak at the hearing should contact
Mr Balentine at (919) 733-4618. Persons who
call in advance of the hearing will be given
priority on the speaker's list. Oral presentation
lengths may be limited depending on the number of
people that wish to speak at the public hearing.
Only persons who have made comments at a public
hearing or who have submitted written comments
will be allowed to speak at the Commission
meeting. Comments made at the Commission
meeting must either clarify previous comments or
proposed changes from staff pursuant to comments
made during the public hearing process.
IT IS VERY IMPORTANT THAT ALL
INTERESTED AND POTENTIALLY AFFECTED
PERSONS, GROUPS, BUSINESSES,
ASSOCIATIONS, IN^HTUTIONS OR AGENCIES
MAKE THEIR VIEWS AND OPINIONS KNOWN
TO THE COMMISSION FOR HEALTH SERVICES
THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS, WHETHER THEY
SUPPORT OR OPPOSE ANY OR ALL
PROVISIONS OF THE PROPOSED RULES. THE
COMMISSION MAY MAKE CHANGES TO THE
RULES AT THE COMMISSION MEETING IF THE
CHANGES COMPLY WITH G.S 150B-21.2(f).
tiiditor's Note: This Rule was filed as a
temporary amendment effective October 1, 1994
for a period of 180 days or until the permanent
rule becomes effective, whichever is sooner.
CHAPTER 19 - HEALTH: EPIDEMIOLOGY
SUBCHAPTER 19A - COMMUNICABLE
DISEASE CONTROL
SECTION .0500 - PURCHASE AND
DISTRIBUTION OF VACCINE
.0502 VACCINE FOR PROVIDERS OTHER
THAN LOCAL HEALTH
DEPARTMENTS
(a) The Department of Environment, Health,
and Natural Resources provides vaccines required
by law free of charge to the following providers
for administration to individuals who need vaccines
to meet the requirement of G.S. 130A-152,
130-155.1 and 15A NCAC 19A .0401:
(1) Community, migrant, and rural health
centers;
(2) Colleges and universities for students;
and
(3) Physicians and other health care provid-
ers.
(b) Upon request of the Department, required
vaccines may be distributed by local health depart-
ments operating as agents of the State to providers
listed in Subparagraphs (a)(1), (2) and (3) of this
Rule.
(c) Providers authorized in Paragraph (a) of this
Rule shall be eligible to receive free vaccines from
the Department only if they sign an agreement
with the Department. This agreement will be
prepared by the Immunization Branch and will
require the provider to:
{4^ Charg e no mor e than fift ee n doUaro
($15.00) for one dose of vaooin e and
fiv e dollars ($5.00) for eaoh additional
doo e , up to a maximum of twenty fiv e
doUaro ($25.00) as a r e oaonablo foo for
administration of vaooineB giv e n at a
s ingl e visit;
(1) Charge no more than thirteen dollars
and fifteen cents ($13.15) for one dose
of vaccine, ug to a maximum of twenty
six dollars and thirty cents ($26.30) as
a reasonable fee for administration of
vaccines given at a single visit;
(2) Provide all vaccines needed during a
visit unless a specific contraindication
exists to one or more of the vaccines;
(3) Charge no oflice fee in addition to an
administration fee for an
immunization-only visit;
(4) Agree not to charge an administration
fee to an individual who states that they
are unable to pay;
(5) Impose no condition as a prerequisite to
835
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NORTH CAROLINA REGISTER
September 1, 1994
PROPOSED RULES
receiving vaccine;
(6) Report in writing or electronically the
name and social security number of the
person to whom vaccine was
administered, the date of
administration, the type and dose of
vaccine(s) administered and the
provider number of the physician or
clinic administering the vaccine to the
Immunization Branch, at least monthly
by the fifth day of each month;
(7) Report adverse vaccine reactions
through the Vaccine Adverse Event
Reporting System (VAERS);
(8) Obtain a signed Important Information
Statement (IIS), Vaccine Information
Pamphlet (VIP), or a separate signature
card or log sheet that contains a
declarative statement specified by the
Branch for each dose of vaccine
administered; retain the signed portion
for a period of 10 years following the
end of the calendar year in which the
form was signed, or for 10 years
following the recipient's age of
majority, whichever is longer; upon
request, furnish copies of the signed
portion to the local health department
or the Department; keep a record of the
vaccine manufacturer, lot number, and
date of administration for each dose of
vaccine administered;
(9) Allow periodic inspection of their
vaccine supplies and records by the
Immunization Branch; and
(10) Comply with the rules of this Section,
(d) A provider who fails to submit timely and
accurate reports, as required in Paragraph (c) of
this Rule, twice in any 12 month period shall have
their eligibility to receive state vaccine suspended
for a period of one year. A provider who fails to
comply with any of the other requirements of this
Rule may have their eligibility suspended by the
Department for a period determined by the
Department and may be subject to an action
brought pursuant to G.S. 130A-27. All
suspensions of eligibility shall be in accordance
with G.S. 130A-23.
Statutory Authority G.S. 130A-152; 130A-155.1;
130A-433; S.L. 1986, c. 1008, s. 2; S.L. 1987, c.
215. s. 7.
TITLE 21 - OCCUPATIONAL
LICENSING BOARDS
CHAPTER 4 - COMMISSION
FOR AUCTIONEERS
l\otice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Auctioneers
Commission intends to amend rules cited as 21
NCAC 4B .0103 - .0104, .0201 - .0202. .0301.
. 0401 - . 0405, . 0501 - . 0502. . 0601 - . 0603; adopt
4B .0604 - .0605 and .0701 .
1 he proposed effective date of this action is
December 1. 1994.
1 he public hearing will be conducted at 2:00
p.m. on September 20, 1994 at the N.C. Auction-
eers Commission Offices. 3509 Haworth Drive.
Suite 306. Raleigh. NC 27609.
MXeason for Proposed Action: The Auctioneers
Commission has proposed this action as a result of
numerous statutory revisions made in the Auction-
eers Law (G S. 85 B) in January and July 1993; to
further clarify previously amended rules; and to
make various technical changes.
(comment Procedures: Interested persons may
present oral or written comments at the Rule-
Making Hearing. In addition, the record of
hearing will be open for receipt of written com-
ments from September 1. 1994 through October 3,
1994. Written comments not presented at the
hearing should be directed to Viiyne Woodard.
The proposed rules are available for public inspec-
tion and copies may be obtained at the
Commission 's Offices at: 3509 Haworth Dr. , Ste.
306, Raleigh. NC 27609.
SUBCHAPTER 4B - AUCTIONEER
LICENSING BOARD
SECTION .0100 - ORGANIZATION
AND GENERAL PROVISIONS
.0103 DEFINITIONS
Whenever used in this Chapter:
fi) "Auction Firm" — sfeeH — m e an — any sol e
propri e torship, partn e rship or corporation
whioh in the regular oourso of bu a in e s B
promotofl auctions, e mploy s auotion ee ro
to conduct auctions in its faciliti es , or
us e s or allows th e us e of its fiiciliti e s for
auctions. This d e finition applies whether
9:11
NORTH CAROLINA REGISTER
September 1, 1994
836
PROPOSED RULES
ef — Bet — ftH — own e r — ef — officer — of that
busin e oo aoto as an auction ee r.
(1) (3) "Auctioneers Law" or "licensing law"
shall refer to Chapter 85B, General
Statutes of North Carolina;
(2) {^ "Board" shall mean the North
Carolina Auctioneers Commission;
f^) "Executiv e Dir e ctor" shall r e f e r to th e
s e cr e tary treasur e r of th e Board:
(3) "Minimum Bid" as used in auctions shall
mean minimum opening bids.
Statutory Authority G. S. 85B-1; 85B-3(f).
.0104 ADMINISTRATIVE LAW
PROCEDURES
(a) Contested Cases. Administrative hearings in
contested cases conducted by the Board or an
administrative law judge (as authorized in G.S.
150B-40) shall be governed by:
(1) procedures set out in Article 3 A of
G.S. Chapter 150B;
(2) insofar as relevant, the Rules of Civil
Procedure as contained in G.S. lA-1;
(3) insofar as relevant, the General Rules
of Practice for the Superior and District
Courts as authorized by G.S. 7A-34
and found in the Rules Volume of the
North Carolina General Statutes.
The rules of Civil Procedure and the General
Rules of Practice for the Superior and District
Courts are hereby adopted by reference for
contested cases for which the Board has authority
to adopt rules under G.S. 150B-38Gi). Such
adoptions by reference shall automatically include
any later amendments and editions of the adopted
matter as authorized by G.S. 1 SOB- 14(c).
(b) Declaratory Rulings. In addition to the
procedures set out in G.S. 150B 17 I50B-4 ,
petitions for declaratory rulings shall be submitted
to the Board and shall contain:
(1) petitioner's name, address and
telephone number;
(2) the statute, rule, or both to which the
request relates;
(3) all facts and infbrmation which are
relevant to the request;
(4) a concise statement of the manner in
which petitioner has been aggrieved;
(5) a draft of the declaratory ruling sought
by petitioner, if a specified outcome is
sought by petitioner;
(6) practices likely to be affected by the
declaratory ruling;
(7) a list or description of persons likely to
be affected by the declaratory ruling;
and
(8) a statement as to whether the petitioner
desires to present oral argument, not to
exceed 30 minutes, to the Board prior
to its decision.
The Board shall ordinarily refuse to
issue a declaratory ruling when:
(A) the petition does not comply with this
subdivision;
(B) the Board has previously issued a
declaratory ruling on substantially
similar facts;
(C) the Board has previously issued a
final agency decision in a contested
case on substantially similar facts;
(D) the facts underlying the request for a
declaratory ruling were specifically
considered at the time of the adoption
of the rule in question; or
(E) the subject matter of the request is
involved in pending litigation.
(c) Petitions For Rule-Making. In addition to
the procedures set out in G.S. 15QB 16 150B-18 .
petitions for rule-making shall be submitted to the
Board and shall contain:
(1) petitioner's name, address and
telephone number;
(2) a draft of the proposed rule or rule
change;
(3) the reason for its proposal;
(4) the effect of the proposal on existing
rules or decisions;
(5) data supporting the proposal;
(6) practices likely to be affected by the
proposal; and a list or description of
persons likely to be affected by the
proposal-j and
(7) a list or description of persons likely to
be affected by the proposal.
Statutory Authority G.S 85B-3(f); 85B-8; 150B-4;
150B-14(a)(l),(c); 150B-18; 150B-38(h).
SECTION .0200 - APPLICATION
FOR LICENSE
.0201 APPLICATION FORMS
(a) Auctioneer. Each applicant for an auctioneer
license shall complete an application form provided
by the Board. This form shall be submitted to the
e x e cutiv e dir e ctor Executive Director and shall be
accompanied by:
(1) one recent bead — aed — Bhouldoro
photogmph ef — the applicant ef
837
9:11
NORTH CAROLINA REGISTER
September 1, 1994
PROPOSED RULES
aoooptable — quality passport-type
photograph for identification^ — twe
inohoo by two inoh e o in oize ;
(2) statements of the results of a local
criminal history records search by the
clerk of superior court (or equivalent
official in other states) in each county
where the applicant has resided ef and
maintained a business within the
immediate preceding 60 months (five
years);
(3) the proper fees, as required by 21
NCAC 4B .0202;
(4) documentation of required schooling or
experience, as follows:
(A) Applicants who base their application
upon their successful completion of an
approved school of auctioneering must
submit a photostatic copy of their
diploma or certificate of successful
completion. A pplicants who base
their a pplication upon their successful
completion of an a pproved school of
auctioneering must have successfully
completed this school within the
previous five years, or if completed
more than five years before, the
a pplicant must submit documentation
verifying the a pplicant's active lawful
participation In auctions within the
two years preceding the date of
a pplication.
(B) Applicants who base their application
upon their successful completion of an
apprenticeship must submit a log
which was maintained and completed
during the apprenticeship period
which details the exact hours and
dates on which they obtained
apprenticeship experience, with each
entry being verified and signed by
their supervising auctioneer. A
minimum of 100 hours of experience
during the apprenticeship two-year
period must be obtained. Not less
than 25 of the total hours accumulated
must be attributable to bid calling and
not less than 50 hours must be
attributable to working as a ring man,
drafting and negotiating contracts,
appraising merchandise, advertising,
clerking and cashiering, with not less
than five hours of accumulated
experience documented for each
category. An apprentice who applies
for an auctioneer license under this
subsection must submit his application
and supporting documentation and
obtain a passing score on the
auctioneer exam prior to the
expiration of his apprentice auctioneer
license.
(5) Non-resident applicants must also
submit a properly completed
"Designation of Agent for Service of
Process Form" with notarized signature
and notarial seal affixed.
(b) Non-Resident Reciprocal Auctioneer. Each
non-resident applicant for auctioneer license, who
applies for a North Carolina license pursuant to
G.S. 85B-5 shall complete an application form
provided by the Board. This form shall be
submitted to the Executive Director and shall be
accompanied by:
(1) one recent passport-type photograph
b«ad — and — s hould e r s — photograph — ef
aoo e ptnbl e — quality for identification^
two inoheo by two inoh e a in e ize ;
(2) statements of the results of a local
criminal history records search by the
clerk of superior court (or equivalent
official) in each county where the
applicant has resided er and maintained
a business within the immediate
preceding 60 months (five years);
(3) the proper fees, as required by 21
NCAC 4B .0202;
(4) a statement of good standing from the
licensing board or Commission of each
and every jurisdiction where the
applicant holds ef — has — b«ld an
auctioneer, apprentice auctioneer or
auction firm license; and
(5) a properly completed "Designation of
Agent for Service of Process Form"
with notarized signature and notarial
seal affixed.
(c) Apprentice Auctioneer. Each applicant for
an apprentice auctioneer license shall complete an
application form provided by the Board. This
form shall be submitted to the e x e cutiv e dir e ctor
Executive Director and shall be accompanied by:
(1) one recent passport-type head — and
Bhould e ro photograph of th e applicant of
aoo e ptnbl e — quality for identification^
two inch e s by two inoho o in o izo ;
(2) statements of the results of a local
criminal history records search by the
clerk of superior court (or equivalent
official) in each county where the appli-
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838
PROPOSED RULES
cant has resided of and maintained a
business within the immediate preced-
ing 60 months (five years);
(3) the proper fees, as required by 21
NCAC 4B .0202;
(4) the signature, as designated on the
application form, of the licensed auc-
tioneer who will be supervising the
apprentice auctioneer; and
(5) a written statement of the proposed
supervisors background and experience
in the auction profession to include the
number and types of auctions conducted
or participated in annually; and
(6) 0) if applicant is a non-resident, a
properly completed "Designation of
Agent for Service of Process Form"
with notarized signature and notarial
seal affixed.
(d) Auction Firms. Each applicant for an
auction firm license shall complete an application
form provided by the Board. This form shall be
submitted to the oxcoutivo — dir e ctor Executive
Director and shall be accompanied by:
(1) statements of the results of a local
criminal history records search by the
clerk of superior court (or equivalent
official) in each county where any
principal and designated person of the
auction firm has resided ef and main-
tained a business within the immediate
preceding 60 months (five years);
(2) the proper fees, as required by 21
NCAC 43 .0202;
(3) a certified copy of any applicable Arti-
cles of Incorporation, Partnership
Agreement, and/or Assumed Name
Certificate;
(4) a statement of good standing from the
licensing board or Commission of each
jurisdiction where the applicant firm
and any principal and designated person
of such firm holds an auctioneer license
of any type; and
(5) if applicant firm is a non-resident, a
properly completed "Designation of
Agent for Service of Process Form"
(one each for the auction firm and for
each principal and designated person of
the firm) with notarized signature and
notarial seal aflixed and, if a corpora-
tion, appropriate corporate seal and
corporate secretary's signature afiixed.
Statutory^ Authority G.S. 85B-3(f); 85B-4; 85B-
4(d); 85B-5.
.0202 FILING AND FEES
(a) Properly completed applications must be
filed (received, not postmarked) in the Board
ofl[ice on or before the filing date established by
the Board for a scheduled examination and must be
accompanied by all required documents.
(b) License fees are as follows:
(1) New auctioneer license for an applicant
who did not serve
an apprenticeship $ 100.00 125.00
This includes a $75. (X) annual license
fee; and n $25.00 application fee^ and
$25. (X) examination fee.
New auctioneer license for an appren-
tice auctioneer $ 75t00 100.00
This » includes a $75.00 annual license
feer i and $ 25. (K) examination fee.
Renewal of auctioneer license $75.00
New apprentice auctioneer
license $ 50.00
This includes a $25.00 license fee and
a $25.00 application fee.
Renewal of apprentice auctioneer li-
cense $ 25.00
New auction firm license (no examina-
tion)
(2)
(3)
(4)
(5)
(6)
01
18}
(9)
(10)
$ T^tOO 100.00
This is includes a $75.00 aimual license
fecr ;and $25.00 application fee.
New auction firm license (examina-
tion) $125.00
This includes a $75.00 armual license
fee; $25.00 a pplication fee; and $25.00
examination fee.
{^ Renewal of an auction firm
license $ 75.00
A pplication and processing fee for
conversion of non-resident reciprocal
license to in-state license $ 25.00
Reinstatement of lapsed
license fee
$ 25.00
(c) Fees shall be paid in the form of a cashier's
check, certified check or money order made
payable to the North Carolina Auctioneer Licens-
ing Board. Checks drawn on escrow or trust
accounts are not accepted. However, personal
checks may be accepted for payment of renewal
fees.
Statutory Authority G.S. 85B-4.1; 85B-6.
SECTION .0300 - EXAMINATIONS
.0301 SUBJECT MATTER
839
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PROPOSED RULES
(a) The auctioneer license examination shall test
the applicant's knowledge of the following
required subjects:
(1) a practical and working knowledge of
the auction business including
fundamentals of auctioneering, contract
drawing, bid calling, basic
mathematical computations and
percentages, advertising, and settlement
statements;
(2) the provisions of the licensing law; and
(3) the rul e s Rules and regulations of the
Board.
(b) The auction firm license examinations shall
test the applicants knowledge of the following:
(1) the provisions of the licensing law; and
£2} the Rules and regulations of the Board-
promulgated in this Chapter . All licenses expire
on June 30 each year.
(b) Applications for renewal of licenses will
only be processed by the Board upon receipt of the
required fee and any records, documents, or
information, requested pursuant to Paragraph (a) of
this Rule.
(c) {b) Any person or entity who engages in any
auctioneering activities governed by the
auctioneers law while hk the license is lapsed will
be subject to the penalties prescribed in the law.
(d) {e) Licenses lapsed or suspended in excess of
24 months shall not be renewable. Persons or
firms whose license has been lapsed or suspended
in excess of 24 months and who desire to be
licensed shall apply for a new license and shall
meet all the requirements then existing.
Statutory Authority G.S. 85B-4(d)(g).
SECTION .0400 - LICENSING
.0401 LICENSE NUMBER: DISPLAY
OF LICENSE AND POCKET CARD
(a) When being licensed each individual or firm
shall be issued a license number which remains
solely his. Should that number be retired for any
reason (such as death, failure to continue in the
auction business, failure to renew his license, or
any other reason) that number will not be reissued
to any other individual or firm.
(b) A pocket card will be issued by the
e x e cutiv e dir e ctor Executive Director giving the
auctioneer^ ef apprentice auctioneer^ or auction
firm's name, license number and date of
expiration. The pocket card must be carried by
the licensee^, and in the case of auction firms the
designated person(s). at all times when
auctioneering activities are being conducted and
shall be available for inspection by the Executive
dir e ctor Director or a dooignoc designated agent of
the Board. An auction firm shall display its
license in a prominent place upon its premises, so
as to be visible for inspection by patrons of the
firm.
Statutory Authority G.S. 85B-3(f}; 85B-4.
.0402 LICENSE RENEWAL
(a) Any licensee desiring the renewal of a
license which is in good standing shall apply for
same and shall submit the required fee fees and
such records or documentation requested by the
Executive Director to verify the licensee's
compliance with G.S. 85B and the rules
Statutory Authority G.S. 85B-3(f); 85B-4.
.0403 APPRENTICE AUCTIONEER
LICENSE
(a) An apprentice auctioneer's license is valid
only while he is associated with and supervised by
a licensed auctioneer assigned by the Board. In
order to be assigned by the Board as a supervisor,
the Board must receive a written notice, signed by
the prospective supervisor and the apprentice,
requesting that the licensed auctioneer be assigned
as a supervisor for the apprentice. Upon receipt of
such a request, the Board shall mok e evaluate the
requested assignment-; how e v e r, and such
requested assignment may be denied by the Board
for good caus e shown if the prospective supervisor
fails to possess a minimum of five years of active
experience in the auctioneering profession or an
equivalent combination of training and experience .
Upon termination of the association between the
supervisor and the apprentice, the supervisor shall
immediately notify the Board in writing, showing
the date and cause of termination.
(b) The supervising auctioneer must be on the
premises of the sale location at any and all times
that an apprentice auctioneer is engaged in bid
calling. Additionally, the supervising auctioneer
shall be responsible for supervising the apprentice
on a regular basis and ensuring that the apprentice
auctioneer conforms with the auctioneer law and
rul es Rules promulgated by the Board.
(c) Any licensed auctioneer who undertakes the
sponsorship of an apprentice auctioneer shall
ensure that the apprentice receives proper training,
supervision, and guidance in the following:
(1) A practical and working knowledge of
the auction business including
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840
PROPOSED RULES
(2)
(3)
(4)
fundamentals of auctioneering, contract
drafting, bid calling, basic mathematical
computations, advertising, and
settlement statements;
The provisions of the licensing law;
The rules Rules and regulations of the
Board; and
The preparation and maintenance of
written agreements, record books, and
other sales records as required by law.
(d) Apprentices are prohibited from conducting
or contracting to conduct any auction without the
prior express written consent of the sponsor. No
sponsor shall authorize an apprentice to conduct or
contract to conduct an auction^ ef to act as
principal auctioneer or handle any funds related to
an auction unless the sponsor has determined that
the apprentice has received adequate training to do
so. An apprentice auctioneer may work under
only one licensed auctioneer at any given time.
(e) TTie sponsor shall be responsible for ensuring
that the apprentice complies with all of the laws,
rul e s Rules and regulations as they apply to any
auction related transaction approved by the
sponsor.
(f) An apprentice auctioneer is also required to
notify the Board, in writing, immediately upon
termination of his association with his supervising
auctioneer, at which time his license will be
immediately held in an inactive status. Aft
apprentic e auction ee r may work und e r only one
lio e n se d auction e er at any giv e n tim e . ]f an
apprentice auctioneer's supervising auctioneer's
license has been suspended, revoked, or placed on
probation the a pprentice auctioneer's license will
be immediately held in an inactive status. Once in
this an inactive status, an apprentice auctioneer
shall not conduct or contract to conduct any
auction. An apprentice auctioneer may only
remain in this inactive status for a maximum of 90
days. If the apprentice auctioneer retains another
sponsor approved by the Board within this 90 day
period, the apprentice auctioneer's license will not
be deemed to have lapsed under 21 NCAC 4B
.0402(d).
Statutory Authority G.S. 85B-3(f); 85B-4.
.0404 GROUNDS FOR LICENSE
DENIAL OR DISCIPLINE
(a) The Board may deny, suspend, or revoke a
license, or issue a letter of reprimand to a licensee,
upon any of the following grounds:
(1) violation of any provision of G.S.
Chapter 85B;
(2) violation of any provision of the rulo s
Rules under 21 NCAC, Subchapter 4B;
(3) a check given to the Board in payment
of required fees which is returned
unpaid;
(4) allowing an unlicensed bid call e r person
(auctioneer) to efy call a bid at a sale;
(5) orying calling a bid at an unlicensed
auction firm sale;
(6) failure to properly, completely and fully
complete an application or making any
false statement or giving any false
information in connection with an
application for a license, renewal or
reinstatement of a license or any
investigation by the Board or the
Board's designee;
(7) been adjudicated mentally incomf)etent
by a court;
(8) committed a crime the circumstances of
which substantially relate to the
auctioneering profession;
(9) violated any federal or state statute or
rule which relates to the auctioneering
profession;
(10) practiced the profession for which the
holder has a license while the holder's
ability to practice was impaired by
alcohol or other drugs or physical or
mental disability or disease;
(11) been incompetent in practice. A
licensee has been incompetent in
practice if the licensee engaged in
conduct which evidences a lack of
ability, fitness or knowledge to apply
principles or skills of the auctioneering
profession;
(12) engaged in unprofessional conduct. In
this Paragraph "unprofessional conduct"
means the violation of any standard of
professional behavior which through
professional experience has become
established in the auctioneering
profession;
(13) obtained or attempted to obtain
compensation by fraud or deceit;
(14) violated any order of the Auctioneer
Licensing Board;
(15) failure to possess truth, honesty and
integrity sufficient to be entitled to the
high regard and confidence of the
public; or
(16) failure to properly make the disclosures
required by 21 NCAC 4B .0405.
(b) When applying the requirements of Rule
841
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NORTH CAROLINA REGISTER
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PROPOSED RULES
.0404(a) to auction firms and/or their applications,
the requirements shall apply to the firm, the
applicant for the license, and all the principalSj aed
officers and designated person of the firm.
Statutory Authority G.S. 85B-8(a)(l); 85B-30.
.0405 INVOLVEMENT IN COURT
ACTION OR ADMINISTRATIVE
HEARING
(a) All auctioneers, apprentice auctioneers and
auction firms, including their principals^ aad
designated person(s). and officers, are under a
continuing duty to report to the Board any and all
criminal arrests for, charges of or convictions of a
misdemeanor that has as an essential element
dishonesty, deceit, fraud or misrepresentation^ or
a any arrests, charges or convictions of any felony.
Convictions include findings of guilt, guilty pleas,
and pleas of nolo contendere. The Board must
receive notice of any such arrest, charge or
criminal conviction within 30 days of its the
occurrence of any or all of these events .
(b) All auctioneers, apprentice auctioneers and
auction firms, including their principals^ esd
designated person(s). and officers, are under a
continuing duty to report to the Board any and all
civil suits involving them that are based upon any
allegation of gross negligence, dishonesty, fraud,
misrepresentation or incompetency, or that in any
way involve and auction sale or a transaction
related to an auction matter or auctioneering. The
Board must receive notice of any such civil suit
within 30 days of the date the complaint in the suit
is served on the defendant in the action, or the
date a pleading containing one or more of these
allegations is served on a party.
(c) All auctioneers, apprentice auctioneers and
auction firms, including their principals^ and
designated person(s) and, officers, are under a
continuing duty to report to the Board any and all
administrative proceedings which are commenced
against them which involve any potential
revocation or suspension of, or other disciplinary
action against, any auction license or auctioneer
license that they hold in another state. The Board
must receive notice of any such administrative
proceeding within 30 days of the date the
auctioneer, apprentice auctioneer or auction firm,
including its principals and officers, is notified of
the administrative proceeding.
Statutory Authority G.S. 85B-3(f); 85B-4.
SECTION .0500 - SCHOOLS OF
AUCTIONEERING
.0501 APPLICATION FOR COURSE
APPROVAL
(a) Schools of auctioneering seeking approval of
their course shall file an application with the Board
on the official school stationery. The application
shall include the following information:
(1) name, mailing address and telephone
number of the school;
(2) name, mailing address and telephone
number of the school owner, manager
and any other person responsible for
conducting the overall operation of the
school;
(3) physical location, including street ad-
dress, of the place where classes will be
conducted; and
(4) a list of all subjects to be taught and the
number of hours of instruction devoted
to each subjectT^
(5) lesson outlines and accompanying hand-
outs for each subject to be taught: and
(6) verification for each prospective in-
structor showing compliance with the
standards set out in 2\ NCAC 4B
.0502(d).
(b) The school shall notify the Board within 30
days of any change in the information required in
Paragraph (a) of this Rule and this requirement
shall continue as long as the school remains
approved by the Board.
Statutory Authority G.S. 85B-3(f); 85B-4(d).
.0502 REQUIREMENTS FOR APPROVAL/
MINIMUM STANDARDS
(a) In order to be accepted as an approved
school, and in order to remain approved, the
course curriculum must contain classroom
instruction in the following subjects for the
minimum number of hours shown:
{4^ Sixt ee n — houna Bid — oolling, — voic e
control, — proper breathing t e ohniqu e o,
and uoe and ooquonoo of numboro;
(3) Eight hours — Antiqu es and furnitur e ;
{5^ Eight houro — Farm equipm e nt;
^ Four houre Auotionoors Law, Rules
and — R e gulations, — and — Auction ee ring
Ethics;
{5) Six hours — Adv e rtising, Drawing Sal e
Bills, Drawing Contmots;
{6) Eight houra — Aooounting, Bookkeeping
Proo e dureo, — Final — Sottlomont — Stat e
m e nts;
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842
PROPOSED RULES
f?) Six hour s — Real E s tat e at Auction;
(8) Throe houro — Automobile Auotionn;
m-
Thr ee hour s — Cattl e and Liv e etook;
fiO) Six houre
Sa l CO'
(44^ On e hour
Estat e and — Banlcruptoy
Hygien e and P e rsonal Ap
poarano e ;
Three hours
Tobaooo Auotion o ;
fl43 Tv . 'o hours — Art, Rugs, J e w e lry, e to.;
ft4) Throe hours — Liquidations;
fi5) Thr ee houre — R e vi e w, Testing, e to., at
th e e nd of the oours e .
(1) Essential Core Curriculum (Minimum
50 hours)
16 Hours ; Bid calling. Voice Control,
Proper Breathing Techniques, and Use
and Sequence of Numbers;
4 Hours ; Advertising
8 Hours z Auctioneers Law and Rules
and Regulations
2 Hours ; Uniform Commercial Code
and Bulk Transfers
2 Hours ; Drafting and Negotiating
Contracts
2 Hours ; Closing Statements and
Settlements
8 Hours 2 Accounting and Mathematics
i Hour z Auctioneering Ethics
2 Hours ; Handling Sale Proceeds and
Escrow Accounts
2 Hours ; Auction Preparation and
Setup
3 Hours ; Review and Testing (End of
Course).
Supplemental Instruction Areas (Mini-
mum 30 hours)
Art, Rugs, Jewelry
Body Language
Farm Machinery
Heavy Equipment
Automobiles
£2]
Antiques
Real Estate
Tobacco
Environmental Issues
Computers
Firearms
Cattle and Livestock
Foreclosure & Bankruptcy Sales
Public Speaking Estate Sales
Hygiene & Personal Appearance
Appraising Ring Work
Sales Tax Requirements Consignment Auctions
Minimum hours are not required in individual
supplemental subjects, however, all topics must be
addressed in the school.
fb) Students attending an approved course must
attend and successfully complete a minimum of 80
hours of classroom instruction according to the list
of subjects and minimum hours of instruction in
each subject specified in Paragraph .0502 (a) of this
Rule. An hour of creditable instruction is defined
as 50 minutes of classroom instruction or practical
exercise accompanied b^ a 10 minute break.
(c) Each course offered must include instruction
by a minimum of five different instructors, at least
three of whom must be professional auctioneers.
Regardless of the total number of hours taught by
any given instructor, no more than 20 hours of an
individual's instruction may be counted to satisfy
the requirements of Paragraph .0502 (a) of this
Rule .
(d) All persons who instruct in an approved
school must have a minimum of five years training
or experience, or a combination thereof, in the
particular field in which they are instructing.
Additionally, an instructor may not be utilized by
a school if he has committed any act or violation
specified in 21 NCAC 4B .0404, unless such
instruction is specifically approved by the Board in
writing.
(e) The school shall provide or make available
suitable facilities, equipment, materials and sup-
plies necessary for the course, specifically includ-
ing:
(1) a comfortable, well-lighted and ventilat-
ed classroom with a seating capacity
sufficient to accommodate all students;
and
(2) audio-visual equipment and other in-
structional devices and aids necessary
and beneficial to the delivery of eflFec-
tive training.
Statutory Authority G.S. 85B-3(f); 85B-4(d).
SECTION .0600 - GENERAL
AUCTIONEERING
.0601 CHANGE OF ADDRESS OR
BUSINESS NAME OR OWNERSHIP
(a) All licensees shall notify the Board in writ-
ing of each change or addition of residence or
business address (including mailing address) ef and
change of trade name^ assumed name, or combina-
tion of names the licensee conducts business
related to auctions, within ten day s of suoh change.
(b) In the case of a corporate licensee, said
licensee shall immediately notify the Executive
Director of any change in the directors or officers
of the corporation and such new director(s) or
officer(s) shall comply with the provisions of
Subparagraphs (d)(1), (4) and (5) in Rule .0201 of
this Subchapter. If the new directors or officers
have a 51% or greater controlling interest in the
corporation, the firm license shall be retired and
843
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NORTH CAROLINA REGISTER
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PROPOSED RULES
the firm must apply for a new license.
(c) In the case of a partnership license, said
licensee shall immediately notify the Executive
Director of any change in partners and such new
partners shall comply with the provisions of
Subparagraphs (d)(n. (4) and (5) in Rule .0201 of
this Subchapter.
(d) In the case of an auction firm license, the
licensee shall immediately notify the Executive
Director of any change in designated person(s) and
such designated persons shall comp ly with the
provisions of Subparagraphs (dKD. (4) and (5) in
Rule .0201 of this Subchapter.
(e) Any change in address, business name or
ownership required by these Rules must be report-
ed within 10 days of the occurrence of such
change.
Statutory Authority G. S. 85B-3(f).
.0602 ADVERTISING
(a) In all advertisements relating to an auction,
the auctioneer's, apprentice auctioneer's or auction
firm's name and license number shall be clearly
given. If an auctioneer is working for or in
conjunction with an auction firm, such relation-
ships must be disclosed and both license numbers
shall be clearly given. A general advertisement
which does not concern a specific sale(s) and
which does not list sale dates, times or locations,
generally referred to as trolling or holding adver-
tisements, is not subject to any identification
requirement. A licensee may advertise under a
name, assumed name, trade name, or combination
of names, only if proper written notice has been
previously filed with the Board. The licensee shall
also notify the Board of all certificates filed with
any county register of deeds in compliance with
G.S. 66-68.
(b) Any licensee who advertises an "Estate Sale"
must specifically disclose, in all advertisement
materials, whether it is the estate of a living or
deceased person. Before conducting an auction as
m "estate sale", the majority of items in the sale
must come from the estate of the living or de-
ceased person(s). Other items not related to or in
an estate may be sold with an estate if specifically
disclosed at or before the time of the auction.
(c) It shall be a violation of these Rules to
advertise an item, either real or personal, as
"absolute" or "without reserve" if the item is
subject to confirmation, minimum bid, or any
other condition of sale. Before advertising an
auction as absolute or without reserve, the majori-
ty of items in the sale must be sold absolute or
without reserve. Items that are not absolute may
be included in the auction provided they are
specifically designated as such in all announce-
ments or advertisements.
(d) It shall be a violation of these Rules to
advertise any auction using such descriptive words
as "Urgent", "Emergency", "Distress" or any
other word which connotates liquidation of assets
or that the buyers will, for some extraordinary
reason, be in a position to reap some unusual
bargain without specifically disclosing, in the
written advertisement, the reason that the sale is
"urgent", the nature of the "emergency" or the
cause of the "distress", etc.
(e) It shall be a violation of these Rules to:
(1) Reference the U.C.C. or any other
uniform act or federal or state law in
any advertisement unless such act or
law is required, by law, to be refer-
enced;
(2) Reference or mention any federal, state
or local agency or commission unless
specifically required by law to do so or
unless prior written approval is received
from such agency; or
(3) Adv e rtis e — for sol e — items — whioh — the
auction ee r doe s not actually plan to
off e r for sale at th e advortioed auction
Otherwise connote that the auction is
under the auspices of. at the direction
of or required by federal or state law or
act or a federal, state or local agency or
commission and that the buyers will,
for some legal or governmental reason.
be in a position to reap some unusual
bargain.
(f) It shall be a violation of these Rules to
advertise for sale items which the auctioneer/firm
does not actually plan to offer for sale at the
advertised auction.
(g} (f) It shall be a violation of these Rules for
an auctioneer or auction firm to permit its name or
license number to appear on any advertisement for
an auction without reviewing the contents of the
advertisement prior to its publication to ascertain
its compliance with applicable law and ruloo Rules .
Statutory Authority G. S.
85B-8(a)(4).
85B-1; 85B-3(f);
.0603 SALE PROCEEDS, ACCOUNTING
AND ESCROW ACCOUNTS
(a) Each payment made payable to the auction-
eer/firm in which any portion belongs to others^
and which are not disbursed to the seller on auc-
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NORTH CAROLINA REGISTER
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844
PROPOSED RULES
tion day, must be deposited in an escrow account
for the benefit of the owner or seller of such
property within three business days after receipt of
same.
(b) Any licensee who disburses any funds on
auction day shall prepare a receipt or settlement
statement in compliance with G.S. 85B-7.I(a) and
maintain records in compliance with G.S. 85B-
7.1(b).
(c) {b) Every auctioneer/firm that does not
disburse all funds to the seller on auction day shall
establish and maintain a separate bank account
designated as "Custodial Account for Sellers
Proceeds" or some similar identifying designation,
to disclose that the depositor is acting as a
fiduciary and that the funds in the account are trust
funds.
(d) (e) Such custodial accounts for sellers
proceeds must be established and maintained in
banks or savings and loan associations located in
the State of North Carolina whose deposits are
insured by the Federal Deposit Insurance
Corporation, or comparable state recognized
insurance agency or program.
(e) (d) The Custodial Account for Sellers shall
be drawn on only for payment of:
(1) the net proceeds to the seller, or to any
person that the auctioneer/firm knows is
entitled to payment;
(2) to pay lawful charges against the
property which the auctioneer/firm shall
in its capacity as agent, be required to
pay; and
(3) to obtain any sums due the
auctioneer/firm as compensation for its
services.
£f} <«) In the event of a dispute between the
seller and buyer of goods or property or between
the licensee and any person in whose name trust or
escrow funds are held, the licensee shall retain
said monies in his trust or escrow account until he
has obtained a written release from the parties
consenting to its disposition or until disbursement
is ordered by a court of competent jurisdiction.
(g) (I) Each auctioneer/firm shall keep such
accounts and records as will disclose at all times
the handling of funds in such Custodial Accounts
for Sellers Proceeds. Accounts and records must
at all times disclose the names of buyers and the
amount of purchase and payment from each, also,
the names of the sellers and the amount due and
payable to each from funds in the Custodial Ac-
count for Sellers Proceeds. All records and
accounts related to an individual seller shall be
delivered to the seller within 14 days of settlement .
(h) (g) All trust or escrow account records and
records of disbursement shall be available for
inspection by the Commission or its duly autho
riz e d — roproBontativo designated agent, without
advance notice, and copies shall be provided to the
Commission upon request.
Statutory Authority G.S. 85B-3(f); 85B-7.1;
85B-8(a).
.0604 CONTRACTS
All written agreements for auctions and registra-
tion, sales and accounting records will be main-
tained at the site during the conduct of the auction
and, upon request, will be made available to the
Commission or its designated agent.
Statutory Authority G.S. 85B-7.
.0605 BroOING
No auctioneer/firm shall bid on items in a sale he
is conducting or procure such a bid without the
intent to purchase the item. In any auction where
the auctioneer/firm bids on items in a sale being
conducted by such auctioneer/firm or such auction-
eer/firm procures such a bid, the auctioneer shall
announce such bidding in advance of the sale.
Statutory Authority G.S. 25-2-328(4); 85B-3(f).
SECTION .0700 - RECOVERY FUND
.0701 APPLICATIONS
All verified applications will be served upon the
Commission in accordance with the procedures set
forth in G.S. lA-1, Rule 4(J).
Statutory Authority G. S. 85B-4. 2.
CHAPTER 40 - BOARD OF OPTICIANS
iSotice is hereby given in accordance with G.S.
150B-21.2 that the State Board of Opticians
intends to amend repeal rules cited as 21 NCAC
40 .0314 and .0319.
1 he proposed effective date of this action is
December 1, 1994.
1 he public hearing will be conducted at 9:00
a.m. on October 17, 1994 at the Auditorium ofNC
845
9:11
NORTH CAROLINA REGISTER
September 1, 1994
PROPOSED RULES
Medical Society Bldg., 222 N. Person Street.
Raleigh. NC 27601.
Jxeasonfor Proposed Action:
21 NCAC 40 .0314 - To change apprenticeship
training program.
21 NCAC 40 .0319 - To establish procedures for
examination applicants from other states.
Comment Procedures: Interested persons may
present statements, orally and in writing, at the
public hearing or in writing prior to the hearing by
mail or hand delivery addressed to NC State Board
of Opticians, 222 N. Person St. , Suite 102, PO
Box 25336, Raleigh, NC 27611-5336.
SECTION .0300 - QUALIFICATIONS:
APPLICATIONS: AND LICENSING
.0314 APPRENTICESHIP AND INTERNSHIP
REQUIREMENTS: REGISTRATION
(a) Each apprentice or intern entering the ap-
prenticeship or internship shall register with the
Board and be issued a certificate of registration.
Registration of the apprenticeship automatically
expires on the first day of July of each year, and,
in order for the apprenticeship to continue, regis-
tration must be renewed each succeeding July 1
until the apprenticeship is completed. If the
apprenticeship or internship is to be supervised by
an ophthalmologist or optometrist, the supervisor
shall provide a statement in which he agrees to
abide by the same requirements as would an
optician providing the same training.
(b) Part-time work or work as an optical sales-
man or consultant shall not apply toward comple-
tion of apprenticeship or internship.
(c) An applicant, through apprenticeship or
internship^ shall have received his training by
working full time, defined as a minimum of 35
hours per week, under the supervision of a li-
censed optician, ophthalmologist, or optometrist
following a curriculum approved by the Board.
(d) The curriculum for the a pprentice shall
include an optical curriculum certification pro-
gram, in a North Carolina community college, and
the satisfactory completion of the program shall be
required. The lecture and laboratory time spent in
a community college in this program shall be
credited as part of the a pprenticeship period and of
its minimum of 35 hours per week.
{e} ^ No more than two persons, whether
apprentices or interns or a combination, may be
trained by an optician, ophthalmologist, or optom-
etrist at the same time.
ifi {«) An apprentice or intern shall be credited
with training time only from the date of registra-
tion with the Board as an apprentice or intern.
The apprenticeship or internship may not be
interrupted for more than 12 months at the time.
(g) (^ When registering to serve a six month
internship, the applicant must have completed the
three and one-half years of apprenticeship as
required by G.S. 90-240(a)(2) and (3) or have
completed the course of training required by G.S.
90-240(a)(l).
(g) Th e Board shall moke availabl e to approntio
oo a list of Board approv e d training oours e s which
th e Board r e oommondo that appr e ntic e s tak e as
b e ing of ofloiotano e to th e m in pr e paration for the
examination for licenour e .
Statutory Authority G.S. 90-239; 90-240; 90-243;
90-249.
.0319 APPLICANTS FROM OTHER STATES
(a) An out of stat e applicant seeking licensure in
North Carolina under G.S. 90-24 1(a) shall tender
an application pr e par e d by him to the Board and in
oonn e otion with sam e ohall furnish accompanied by
affidavits from two persons with whom be the
a pplicant worked as an optician for the previous
four years. In addition, fee the a pplicant shall
furnish written — s tat e m e nts affidavits from two
qualifi e d licensed refractionists, either ophthalmol-
ogists or optometrists, under oath that fee the
a pplicant has satisfactorily filled feis the
refractionists' prescriptions for both spectacle
lenses and contact lenses and practiced the
profession of opticianry for four years in -tfeat
another state immediately prior to the application.
Any application filed by an applicant seeking
licensur e pursuant to G.S. 90 2 4 1(a) must b e fil e d
with th e Board within 90 days aft e r ootablishm e nt
of rooideno e in North Carolina.
(b) An out of stat e applicant under G.S. 90-
241(a) shall be required to take the contact lens
portion of the examination administered by the
Board, Board unless ««efe the applicant docum e nts
that — be — ef — sbe has passed a contact lens
examination, substantially similar to the confact
lens portion of the examination administered by the
Board, administered by the licensing authority in
the state in which he or sh e the a pplicant is
licensed, or a national contact lens examination
approved by the Board.
(c) An applicant seeking admission to an
examination under G.S. 90-241 (b) shall tender an
9:11
NORTH CAROLINA REGISTER
September 1, 1994
846
PROPOSED RULES
application to the Board accompanied by affidavits
from two persons who are licensed, certified or
otherwise authorized by another state to engage in
the practice of opticianry and under whom or with
whom the applicant worked in the other state. The
application and the affidavits shall describe the
tasks performed by the applicant in the other state
and the dates the tasks were performed.
(d) An application under G.S. 90-241 (a) and (h)
must be filed with the Board not more than 90
days following the termination of the applicant's
out-of-state opticianry work for which the
applicant claims credit.
Statutory Authority G.S. 90-237; 90-239; 90-241;
90-249.
TITLE 25 - OFFICE OF STATE
PERSONNEL
jyiotice is hereby given in accordance with G.S.
150B-21.2 that the State Personnel Commission
intends to amend rule cited as 25 NCAC 11 . 2005.
1 he proposed effective date of this action is
December 1, 1994.
1 he public hearing will be conducted at 9:00
a.m. on October 13, 1994 at the Community
Colleges Board Room, Caswell Building, 200 West
Jones Street, Room 179, Raleigh, North Carolina
27603.
MXeason for Proposed Action: To clarify the
amount of time spent in the trainee progression to
the first six months and to correct an unintentional
omission of the word "not".
L^omment Procedures: Interested persons may
present statements either orally or in writing at the
Public Hearing or in writing prior to the hearing
by mail addressed to: Patsy Smith Morgan, 116 W
Jones Street, Raleigh, North Carolina 27603.
CHAPTER 1 - OFFICE OF STATE
PERSONNEL
SUBCHAPTER II - SERVICE TO LOCAL
GOVERNMENT
SECnON .2000 - APPOINTMENT AND
SEPARATION
.2005 SEPARATION
Separation occurs when an employee leaves the
payroll for reasons indicated in this Rule or be-
cause of death. Employees who have acquired
permanent status will not be subject to involuntary
separation or suspension except for cause or
reduction-in-force.
(1) Resignation or Retirement. An employee
may terminate his services with the agen-
cy by submitting a resignation or request
for retirement to the appointing authority.
It is expected that an employee will give
at least two weeks notice prior to his last
day of work.
(2) Dismissal. Dismissal is involuntary
separation for cause, and shall be made
in accordance with the provisions of the
Policy on Suspension and Dismissal.
(3) Reduction-in-Force. For reasons of
curtailment of work, reorganization, or
lack of funds the appointing authority
may separate employees. Retention of
employees in classes affected shall be
based on systematic consideration of type
of appointment, length of service, and
relative efficiency. No permanent em-
ployee shall be separated while there are
emergency, intermittent, temporary,
probationary, or trainee employees in
their first six months of the trainee pro-
gression serving in the same or related
class, unless the permanent employee is
not willing to transfer to the position held
by the non-permanent employee, or the
permanent employee does not have the
knowledge and skills required to perform
the work of the alternate prosition within
a reasonable f)eriod of orientation and
training given any new employee. A
permanent employee who was separated
by reduction-in-force may be reinstated at
any time in the future that suitable em-
ployment becomes available. The em-
ployer may choose to offer employment
with a probationary appointment. The
employee must meet the current mini-
mum education and experience standard
for the class to which he is being
appointed.
(4) Voluntary Resignation Without Notice.
Any employee voluntarily terminates
employment by foiling to report to work
without giving written or verbal notice to
the employing agency. Such a failure
shall be deemed to be a voluntary
847
9:11
NORTH CAROLINA REGISTER
September 1, 1994
PROPOSED RULES
resignation from employment without
notice when the employee is absent
without approved leave for a period of at
least three consecutive, scheduled
workdays. Separation pursuant to this
policy should not occur until the
employing agency has undertaken
reasonable efforts, to locate the employee
and determine when or if the employee is
intending to return to work. This
provision also applies when the employee
is absent for at least three consecutive,
scheduled workdays, has been instructed
verbally or in writing of a specific
manner of reporting by management, and
does not report in to the appropriate
supervisory personnel on a regular basis
satisfectory to the employing agency.
Such separations as described in this
Subparagraph are voluntary separations
from agency employment and create no
right of grievance or appeal pursuant to
the State Personnel Act (G.S. Chapter
126).
(5) Separation Due to Unavailability When
Leave is Exhausted. An employee may
be separated on the basis of unavailability
when the employee becomes or remains
unavailable for work after all applicable
leave credits and benefits have been
exhausted and agency management does
not grant a leave without pay for reasons
deemed sufficient by the agency. Such
reasons include but are not limited to,
lack of suitable temporary assistance,
criticality of the position, budgetary
constraints, etc. Such a separation is an
involuntary separation, and not a
disciplinary dismissal as described in
G.S. 126-35, and may be grieved or
appealed. Prior to separation the
employing agency shall meet with or at
least notify the employee in writing, of
the proposed separation, the efforts
undertaken to avoid separation and why
the efforts were unsuccessful. The
employee shall have the opportunity in
this meeting or in writing to propose
alternative methods of accommodation.
If the proposed accommodations are not
possible, the agency must notify the
employee of that fact and the proposed
date of separation. If the proposed
accommodations or alternative
accommodations are being reviewed, the
agency must notify the employee that
such accommodations are under review
and give the employee a projected date
for a decision on this. Involuntary
separation pursuant to this policy may be
grieved or appealed. The employing
agency must also give the employee a
letter of separation stating the specific
reasons for the separation and setting
forth the employee's right of appeal.
The burden of proof on the agency in the
event of a grievance is not just cause as
that term exists in G.S. 126-35. Rather,
the agency's burden is to prove that the
employee was unavailable and that the
agency considered the employee's
proposed accommodations for his
unavailability and was unable to make the
proposed accommodations or other
reasonable accommodations. Agencies
should make efforts to place an employee
so separated pursuant to this policy when
the employee becomes available, if the
employee desires, consistent with other
employment priorities and rights.
However, there is no mandatory
requirement placed on an agency to
secure an employee, separated under this
policy, a position in any agency.
Statutory Authority G.S. 126-4.
NORTH CAROLINA REGISTER
September 1, 1994
848
RRC OBJECTIONS
1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S.
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d).
COMMERCE
Energy
4 NCAC 12C .0007- Institutional Conservation Program
Rule Returned to Agency
Agency Filed Rule for Codification Over RRC Objection
CRIME CONTROL AND PUBLIC SAFETY
State Highway Patrol
14A NCAC 9H .0305 - Rotation, Zone, Contract, and Deviation from System
Agency Revised Rule
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
Departmental Rules
15 A NCAC IJ .0303 - Filing of Required Supplemental Information
Agency Revised Rule
15A NCAC IJ .0701 - Public Necessity: Health: Safety and Welfare
Agency Revised Rule
Agency Revised Rule
ISA NCAC IL .0302 - General Provisions
Agency Revised Rule
15A NCAC IL .0602 - Public Health Need
Agency Re\'ised Rule
Environmental Health
ISA NCAC 18A .2610 - Storage: Handling: and Display of Food
Agency Re\'ised Rule
ISA NCAC 18A .2645 - Requirements for Limited Food Service Establishments
Agency Revised Rule
ISA NCAC 18C .0202 - Removal of Dissolved Matter and Suspended Matter
Agency Revised Rule
ISA NCAC 18C .0203 - Public Well Wjter Supplies
Agency Revised Rule
ISA NCAC 18C .0402 - Vhter Supply Wells
Agency Revised Rule
ISA NCAC 18C .0403 - Surface Wbter Facilities
Agency Revised Rule
ISA NCAC 18C .0404 - Witer Treatment Facilities
Agency Revised Rule
ISA NCAC 18C .0405 - Storage of Fmished Water
Agency Revised Rule
RRC Objection 06/16/94
07/14/94
Eff. 08/16/94
RRC Objection
Obj. Removed
07/14/94
07/14/94
RRC Objection
Obj. Removed
RRC Objection
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
06/16/94
06/16/94
06/16/94
06/16/94
07/14/94
06/16/94
06/16/94
06/16/94
06/16/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
849
9:11
NORTH CAROLINA REGISTER
September 1, 1994
RRC OBJECTIONS
15A NCAC 18C .0710 - Other Mbter Treatment Plants RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
15A NCAC 18C .0711 - Alternative Filtration Treatment Technologies RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
15A NCAC 18C . 0714 - Pilot Plant Studies RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
15 A NCAC 18C .0802 - Capacities: Determining Peak Demand RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
ISA NCAC 18C .0803 - Capacities: Determining Total Volume RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
15A NCAC 18C .0805 - Capacities: Elevated Storage RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
15A NCAC 18C . 1002 - Disinfection of Wells RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
15A NCAC 18C . 1004 - Disinfection of Filters RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
15A NCAC 18C . 1102 - Authorized Persons Within Watershed Area RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
15A NCAC 18C . 1209 - Untreated Domestic Sewage or Industrial Wistes RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
15A NCAC 18C . 1406 - Control of Treatment Process RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
15A NCAC 18C . 1511 - Concentration of Iron RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
15A NCAC 18C .1512 - Concentration of Manganese RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
15A NCAC 18C .1533 - Total Trihalomethanes Sampling/ Analysis: < 10,000 RRC Objection 06/16/94
Agency Revised Rule Obj. Removed 06/16/94
Environmental Management
15A NCAC 2D .0101 - Definitions
Agency Revised Rule
15A NCAC 2D . 0932 - Gasoline Truck Tanks and Vapor Collection Systems
Agency Revised Rule
RRC Objection 06/16/94
Obj. Removed 06/16/94
RRC Objection 06/16/94
Obj. Removed 06/16/94
Wildlife Resources and Water Safety
15 A NCAC lOD .0002 - General Regulations Regarding Use
Agency Revised Rule
15 A NCAC lOH .0101 - License to Operate
Agency Revised Rule
15A NCAC 101 .0001 - Definitions and Procedures
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
06/16/94
06/16/94
06/16/94
06/16/94
08/18/94
HUMAN RESOURCES
Childrens Services
10 NCAC 411 . 0306 - When Abuse, Neglect or Dependency is Found
Agency Revised Rule
10 NCAC 41J .0501 - When to Complete a Risk Assessment
Agency Revised Rule
RRC Objection 07/14/94
Obj. Removed 07/14/94
RRC Objection 07/14/94
Obj. Removed 07/14/94
Facility Services
9:11
NORTH CAROLINA REGISTER
September 1, 1994
850
RRC OBJECTIONS
10 NCAC 3D .0913 - Permit
Agency Revised Rule
10 NCAC 3E .0201 - Building Code Requirements
Agency Revised Rule
10 NCAC 3E .0206 - Elements and Equipment
Agency Revised Rule
10 NCAC 3R .4206 - Accessibility
Agency Revised Rule
10 NCAC 3U .0713 - Staff/Child Ratios for Medium and Large Centers
Agency Revised Rule
Mental Health, Developmental Disabilities and Substance Abuse Services
10 NCAC 45G .0139 - Security Requirements Generally
Agency Revised Rule
Mental Health: General
10 NCAC 14C . 1148 - nomas S. Community Services
Agency Revised Rule
Mental Health: MR Centers
10 NCAC 16A .0402 - Explanation of Terms
Agency Revised Rule
10 NCAC 16A .0403 - Designation Procedures
Agency Revised Rule
INDEPENDENT AGENCIES
State Health Plan Purchasing Alliance Board
24 NCAC 5 .0302 - Designation Process
Agency Revised Rule
INSURANCE
Multiple Employer Welfare Arrangements
11 NCAC 18 .0019 - 'Qualified Actuary"; Maximum Net Retention Filing
Agency Revised Rule
11 NCAC 18 .0021 - Certification of Reserves Filing
Agency Revised Rule
JUSTICE
Criminal Information
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
07/14/94
07/14/94
06/16/94
06/16/94
06/16/94
06/16/94
06/16/94
06/16/94
06/16/94
06/16/94
06/16/94
06/16/94
06/16/94
06/16/94
RRC Objection 06/16/94
Obj. Removed 06/16/94
RRC Objection 06/16/94
Obj. Removed 06/16/94
RRC Objection
Obj. Removed
06/16/94
06/16/94
RRC Objection 06/16/94
Obj. Removed 06/16/94
RRC Objection 06/16/94
Obj. Removed 06/16/94
12 NCAC 4E .0402 - Certification and Recertification ofDCI Operators
Agency Revised Rule
Criminal Justice Education and Training Standards
12 NCAC 9B .0203 - Admission of Trainees
Agency Revised Rule
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
07/14/94
07/14/94
07/14/94
07/14/94
851
9:11
NORTH CAROLINA REGISTER
September 1, 1994
RRC OBJECTIONS
12 NCAC 9B .0208 - Basic Training - Probation/ Rirole Officers
Private Protective Services
12 NCAC 7D .1101 - Definitions
Agency Revised Rule
12 NCAC 7D .1104 - Training and Supervision Required in Level Three
Agency Revised Rule
LICENSING BOARDS AND COMMISSIONS
RRC Objection 07/14/94
RRC Objection 06/16/94
Obj. Removed 06/16/94
RRC Objection 06/16/94
Obj. Removed 06/16/94
RRC Objection 06/16/94
Obj. Removed 06/16/94
RRC Objection 06/16/94
Obj. Removed 06/16/94
Acupuncture Licensing Board
21 NCAC 1 .0102 - Req./Vhiver/Qualijications /Licensure Detailed/G.S. 90-455 RRC Objection 07/14/94
Agency Revised Rule Obj. Removed 07/14/94
Board of Nursing
21 NCAC 36 .0211 - Examination
Agency Revised Rule
21 NCAC 36 .0218 - Licensure Without Examination (By Endorsement)
Agency Revised Rule
Professional Counselors
21 NCAC 53 . 0103 - Purpose of Organization
Agency Repealed Rule
21 NCAC 53 .0104 - Organization of the Board
Agency Repealed Rule
21 NCAC 53 .0201 - Supervision
Agency Repealed Rule
21 NCAC 53 .0303 - Wyrk Experiences
Agency Repealed Rule
21 NCAC 53 .0305 - Exemption from Academic Qualijication
Rule Withdrawn by Agency
21 NCAC 53 .0503 - Renewal Fee
Agency Revised Rule
Therapeutic Recreation Certification
21 NCAC 65 .0004 - Academic - TRS Examination
REVENUE
Sales and Use Tax
17 NCAC 7B . 2608 - Plumbing: Heating: Air Cond/Elec Contractors: Purchases RRC Objection 05/19/94
Rule Returned to Agency 06/16/94
17 NCAC 7B .2609 - Plumbing: Heating: Air Cond/Bec Contractors: Sales RRC Objection 05/19/94
Rule Returned to Agency 06/16/94
17 NCAC 7B .5462 - White Goods Disposal Tax Report Form: E-500W RRC Objection 05/19/94
Rule Returned to Agency 06/16/94
17 NCAC 7B .5464 - Ice Certificate Form: E-599Y RRC Objection 05/19/94
Rule Returned to Agency 06/16/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
06/16/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
RRC Objection 08/18/94
9:11
NORTH CAROLINA REGISTER
September 1, 1994
852
RRC OBJECTIONS
TRANSPORTATION
Division of Motor Vehicles
19A NCAC 3B .0703 - Requirements for Third Party Testers
Agency Revised Rule
19A NCAC 31 .0307 - Courses of Instruction
Agency Revised Rule
19A NCAC 31 .0501 - Requirements
Rule Withdrawn by Agency
Agency Re-Submits Rule
Agency Re\ised Rule
19A NCAC 3J .0501 - Requirements
Agency Revised Rule
RRC Objection
07/14/94
Obj. Removed
07/14/94
RRC Objection
06/16/94
Obj. Removed
06/16/94
06/16/94
RRC Objection
07/14/94
Obj. Removed
07/14/94
RRC Objection
07/14/94
Obj. Removed
07/14/94
853 9:11 NORTH CAROUNA REGISTER September 1, 1994
CONTESTED CASE DECISIONS
Ihis Section contains the full text of some of the more significant Administrative Law Judge decisions
along with an index to all recent contested cases decisions which are filed under North Carolina 's
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698.
AGENCY
CASE
NUMBER
ALJ
DATE OF
DECISION
PUBLISHED DECISION
REGISTHt CITATION
ADMINISTRATION
North Carolina Council for Women
Family Violence Prevention Services v. N.C. Council for Women
ALCOHOLIC BEVERAGE CONTROL COMMISSION
Alcoholic Beverage Control Comm. v. Entertainment Group, Inc.
Rayv^n Stewart v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Comm. v. Brancblarvl, Inc.
Alcoholic Beverage Control Corrmi. v. Peggy Sutton Walters
Russell BemanJ Speller d/b/a Cat's Disco v. Alcoholic Bev Cll Cormn.
Alcoholic Beverage Control Comm. v. Branchland, Inc.
Edward Ogunjobi, Club Piccadilli v. Alcoholic Beverage Control Comm.
Robert Kovalaske, Nick Pikoulas, Joseph Marshbuni, Evangelos Pikoulas,
d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission
Christine George Williams v. Alcoholic Beverage Control Comm.
Lyim Ann Garfagna v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Comm. v. Raleigh Limite, Inc.
, COLAP Enterprises, Inc.
Mitch's Tavern, Inc.
. Ms. Lucy Jarrell Powell
Daphne Arm Harrell
Alcoholic Beverage Control Conmi.
Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm.
Mr. &. Mrs. Josh Bullock Jr. v. Alcoholic Beverage Control Conmi.
Jerome Crawford v. Alcoholic Beverage Control Commission
Lawrence Mungin v. Alcoholic Beverage Control Cormnission
Alonza Mitchell v. Alcoholic Beverage Control Cormnission
Roy Dale Cagle v. Alcoholic Beverage Control Commission
COMMERCE
94 DOA 0242
West
04/13/94
93 ABC 0719
Gray
03/02/94
93 ABC 0793
Nesnow
04/11/94
93 ABC 0892
Morgan
06/03/94
93 ABC 0906
Mann
03/18/94
93 ABC 0937
Morrison
03/07/94
93 ABC 0993
Morgan
06/03/94
93 ABC 1024
West
03/03/94
93 ABC 1029
Gray
03/04/94
93 ABC 1057
Bee ton
04/21/94
93 ABC 1481
Gray
07/19/94
93 ABC 1485
Maim
03/11/94
94 ABC 0060
Nesnow
06/07/94
94 ABC 0064
Gr^
07/26/94
94 ABC 0070
Morgan
06/06/94
94 ABC 0115
Nesnow
07/18/94
94 ABC 0124
Morgan
06/06/94
94 ABC 0125
Morgan
06/06/94
94 ABC 0149
Chess
08/08/94
94 ABC 0257
Morrison
07/28/94
9; 11 NCR 870
94 ABC 0260
West
07/13/94
Savings Institutions Division
James E. Byers, et al v. Savings Institutions
CORRECTION
Division of Prisons
Gene Strader v. Department of Correction
CRIME CONTROL AND PUBLIC SAFETY
93 COM 1622 Chess
94 DOC 0252
03/01/94
Morrison 03/21/94
Joseph Guernsey & I^rents, Robert Guems^ & Dolores Guernsey
v. Pitt County Hospital Eastern Radiologists
Crime Victims Compensation Commission
Mae H. McMillan v. Crime Victims Compensation Commission
James Hugh B^nes v. Crime Victims Compensation Commission
Ross T. Bond v. Victims Compensation Commission
James A. Canady v. Crime Victims Compensation Commission
Virginia Roof v. Department of Crime Control & Public Safety
Karen C. Tilghman v. Crime Victims Compensation Commission
94 CPS 0413
Gray
07/11/94
92 CPS 1328
Morgan
08/11/94
93 CPS 0801
West
03/28/94
9:2 NCR
114
93 CPS 1104
West
04/21/94
93 CPS 1108
Gray
03/28/94
93 CPS 1347
Nesnow
03/24/94
93 CPS 1608
Reilly
05/17/94
9;6 NCR
407
9:11
NORTH CAROLINA REGISTER
September 1, 1994
854
CONTESTED CASE DECISIONS
AGENCY
Rosemary Taylor v. Crime Victims Compensation CommiBsioa
Violet E. Kline v. Crime Victims Compensation Commission
James Benlon v. Crime Victims Compensation Commission
Percy Clark v. Crime Victims Compensation Commission
J. Richard Spencer v. Crime Victims Compensation CommiBsion
Albert H. Walker v. Crime Victims Compensation Commission
Barbara Hendeison v. Crime Victims Compensation Commission
Shirley Handsome v. Crime Victims Compensation Commission
Geor^eann Young v. Crime Victims Compensation Comimssion
Lawrence L. Tyson v. Crime Victims Compensation Commission
Lyman L. Chapman v. Crime Victims Compensation Commission
Douglas and Virginia Wilson v. Crime Victims Compensation Comm.
Michelle L. Wilcox v. Crime Victims Compensation Commission
Michael G. Low v. Crime Victims Compensation Commission
Hazel Jarvis v. Victims Compensation Commission
Mary E. Haskins v. Crime Victims Compensation Commission
CASE
DATE OF PUBLISHED DECISION
NUMBER
AU
DECISION REGISTER CITATION
93 CPS 1626
Nesnow
05/25/94
93 CPS 1670
Morgan
06/13/94
94 CPS 0034
Chess
06/14/94
94 CPS 0127
Reilly
04/19/94
94 CPS 0157
Chess
06/14/94
94 CPS 0229
Reilly
08/11/94
94 CPS 0259
Morrison
04/07/94
94 CPS 0286
Gray
04/28/94
94 CPS 0292
Reilly
04/18/94
94 CPS 0368
Gray
04/26/94
94 CPS 0415
Chess
06/02/94
94 CPS 0417
Reilly
06/07/94
94 CPS 0467
Reilly
06/07/94
94 CPS 0524
Morrison
06/13/94
94 CPS 0664
Chess
07/29/94
94 CPS 1406
Gray
03/17/94
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
Bobty Stallings v. Environment, Health, and Natural Resources
William R Shaver, R. McKinnon Morrison m. Till Ray, Dr. Wesley
C. Ray, Douglas W Furr, Catherine H. Furr & Caldwell Creek Farm, Inc.
V. EHNR-State of North Carolina
Ron D. Graham, Suzanne C. Graham v. Robert Cobb, MeckJenbuig Cty
Patricia D. Solomon v. Macon County Health Department
Elbert L. Winslow v. EHNR/Guilford Cty Health Dept. & Guilford Cty
Piarmiqg &. Zoning Board
Kalhryn A. Whitley v. Macon County Health Department
Brook Hollow Estates v. Envirormient, Health, & Natural Resources
Oceanfront Court, David C. Gagnon v. Environment, Health, & Nat. Res.
Sam's Club #8219 v. Mecklenburg County Health Department
Eugene Crawford & Nancy P. Crawford v. Macon County Health Dept.
Tri-Circuis, Inc. v. Etrvirormient, Health, & Natural Resources
90 EHR 0612
Morgan
08/11/94
93 EHR 0452
Morgan
08/11/94
93 EHR 1017
Becton
05/31/94
93 EHR 1777
West
05/23/94
94 EHR 0086
Chess
07/13/94
94 EHR 0088
West
07/13/94
94 EHR 0093
West
06/03/94
94 EHR 0210
Chess
06/21/94
94 EHR 0329
Nesnow
06/15/94
94 EHR 0500
Gray
06/10/94
94 EHR 0601
Morrison
06/30/94
9:7 NCR 496
CoasUU Management
Roger Fuller v. EHNR, Div. of Coastal Mgmt & Enviroimiental Mgmt
Roger Fuller v. EHNR, Div. of Coastal Mgmt & Environmental Mgmt
John R. Hooper v. EHNR, Div./Coastal Mgmt & Bird's Nest I^rtnership
Gary E. Montalbine v. Division of Coastal Management
F^l^-Midgett t^rtnemhip v. Coastal Resources Commission
89 EHR 1378'^
Gray
04/07/94
90 EHR 0017**
Gray
04/07/94
90 EHR 0455
Morgan
08/11/94
93 EHR 1792
Nesnow
03/21/94
94 EHR 0315
Gray
06/01/94
Environmental Health
Jane C. O'Mallcy, Melvin L. Cartwright v. EHNR & District HIth Dept
F^quotank-ftrquimans-Camden-Chowan
Henry Lee Bulluck v. Nash County Health Department & EHNR
Environment. Health. &. Natural Res. v. Clark Harris & Jessie Lee Harris
Richard F. Ebersold v. Jackson County Health Department & EHNR
Sidn^ S. Tate Jr. v. Dept. of Envirormient, Health, & Natural Resources
Scotland Water Co., Laurin Lakes v. Envirormient, Health, & Nat. Res.
H.A. Lentz v. Department of Envirormient, Health, & Natural Resources
Floyd Berm Williams v. Dept. of Environment, Health, & Nat. Res.
91 EHR 0838
Bee ton
04/06/94
93 EHR 0348
Moigan
07/22/94
93 EHR 0924
Bee ton
03/03/94
93 EHR 1391
Chess
06/24/94
94 EHR 0005
Reilly
05/24/94
94 EHR 0200
Nesnow
04/27/94
94 EHR 0235
Nesnow
07/19/94
94 EHR 0333
Reilly
05/18/94
Environmental Management
David Springer v. Dept. of Envirormient, Health, & Natural Resources
Petroleum Installation Equipment Co., Inc. v. Env. , Health & Nat. Res.
Jack Griffin v. Dept. of Environment, Health, and Natural Resources
92 EHR 1797
Morgan
05/19/94
93 EHR 0531
Chess
03/21/94
93 EHR 1030
Becton
03/21/94
Consolidated Cases.
855
9:11
NORTH CAROLINA REGISTER
September 1, 1994
CONTESTED CASE DECISIONS
AGENCY
CASE
NUMBER
AU
DATE OF
DECISION
PUBLISHED DECISION
REGISTER CITATION
Land Resources
Wallace B. Clayton, Dr. Marehall Redding v. Div. of Land Resources
Town of Kernemville (LQS 93-053) v. Environment, Health, &. Nat. Res.
Royce Perry, Paul Perry v. Dept. of Environment, Health, & Natural Res.
Marine Fisheries
Robert I. Swinson, Virginia S. Swinson v. EHNR, Div/Marine Fisheries
Larry J. Batson v. Division of Marine Fisheries
David W. Oglesby v. Division of Marine Fisheries
David E. Oglesty v. Division of Marine Fisheries
James Goodman v. EHNR, Division of Marine Fisheries
SoUd Waste Management
Roger Sessoms v. EHNRV Asbestos Hazaid Management Branch
Bertie Citizens Action Coalition, Inc.; Willaid J. Oliver, Reginald Early,
Herbert Jenkins, Jr, Lindwood Earl Tripp, Willie Warren Tripp, Mary
Alice Cherry, and Kathy Burden v. EHNR, Solid Waste Management
Division, and East Carolina Environmental, Inc., yVldington Environmental
Inc., et al.
93 EHR 1407
Morgan
08/09/94
93 EHR 1781
Chess
06/29/94
9:8 NCR 581
94 EHR 0525
Gray
07/01/94
93 EHR 0394 Gray
93 EHR 0857 Morgan
93 EHR 0930* West
93 EHR 0931'* West
94 EHR 0035 Nesnow
93 EHR 0951
93 EHR 1045
Gray
Morrison
04/11/94
07/22/94
07/25/94
07/25/94
07/18/94
03/28/94
04/06/94
9:10 NCR 758
9:10 NCR 758
9:9 NCR 660
9:3 NCR 214
HUMAN RESOURCES
Helen J. Walls, Walls \bung World v. Department of Human Resources
Brenda C. Robinson v. Department of Human Resources
Betty Rhodes v. Department of Human Resources
Distribution Child Support
Mona L. Stanback v. DHR, Div/Social Svcs, Child Support Enf. Section
Jacbell D. F^ker v. Department of Human Resources
93 DHR 0965
94 DHR 0365
94 DHR 0501
93 DCS 0969
93 DCS 0371
Morgan 08/11/94
West 06/01/94
Morrison 06/02/94
Morgan
Morgan
08/02/94
07/14/94
Division of Child Development
Judith Fridl^ v. Div. of Child Development/ Abuse/Neglect Unit
DHR, Division of Child Development v. Joyce Gale
Lautcen Holt, lD«'26-0-00037 v. DHR, Div. of Child Development
Gloria C. Haith v. Department of Human Resources
Gloria C. Haith v. Daycare Consultant
Charles E. Smith v. Department of Human Resources
Scotfs Lwing Day Cart & Nursery, Mrs. Willie L. Scott v. DHR
Belinda K. Mitchell v. Human Resources, Div. of Child Development
Living Word Day Care, Jonathan Lankford v. Dept. of Human Resources
Facility Services
Laura Harvey Williams v. DHR, Division of Facility Services
Presbyterian-Orthopaedic Hospital v. Department of Human Resources
Judy Hoben Wallace v. Department of Human Resources
Lowell Statford v. Department of Human Resources
Certificate of Need Section
93 DHR 0973
Morrison
03/08/94
93 DHR 1344
Gray
04/28/94
93 DHR 1549
Beclon
07/13/94
93 DHR 1707
Nesnow
03/22/94
93 DHR 1787
Nesnow
03/14/94
93 DHR 1797
Nesnow
03/21/94
94 DHR 0106
Nesnow
06/29/94
94 DHR 01 19
ReiUy
06/30/94
94 DHR 0168
Nesnow
03/23/94
93 DHR 0391
Morgan
08/11/94
93 DHR 0805
Reilly
03/11/94
93 DHR 0935
Gray
05/23/94
93 DHR 1381
Gray
04/15/94
Charles E. Hunter, Jr., M.D. & Coastal Perfusion Svcs, Inc. v.
Department of Human Resources, and Wilmington Perfusion
Corp. and Howard F. Marks, Jr., M.D.
Cape Pear Memorial Hospital v. Department of Human Resources
The Carrolton of Fayetleville, Inc. v. Department of Human Resources
and
Highland House of ftyetlcville, Inc. & Richard R. Allen Sr. v. DHR
The Carrolton of Fayetteville, Inc. v. Department of Human Resources
arKl
Highland House of Fayetteville, Inc. & Richard R. Allen Sr. v. DHR
93 DHR 0746 Morgan 04/11/94
93 DHR 1552 Reilly 08/15/94
94DHR0197*> Morgan 08/11/94
94 DHR 0198** Mor^ian 08/11/94
9:11
NORTH CAROLINA REGISTER
September 1, 1994
856
CONTESTED CASE DECISIONS
AGENCY
CASE
NUMBER
ALJ
DATE OF
DECISION
PUBLISHED DECISION
REGISTER CITATION
Division of Medical Assistance
J.R , by and through her agenl & Personal Rep., Hank Neal v. DHR
David Yotl v. Department of Human Resources
Division of Medical Afisislance v. Catawba Cty Dept. of Social Services
Lu Ann Leidy, MD/Dorothea Dix Hosp. Child & Youth v. Medical Asais.
Di^sion of Social Services
Evelyn Moore v. Department of Human Resources
Nathaniel Harrell, Annie Hatrell v. Department of Social Services
93 DHR 0528
Gray
04/27/94
93 DHR 1113
Gray
04/05/94
93 DHR 1778
West
03/04/94
94 DHR 0448
Chess
06/21/94
94 DHR 0293
94 DHR 0440
Reilly
Gray
04/15/94
06/27/94
Child Support Enforcement Section
Alfred Bennett v. Department of Human Resources
Shelton Staples v. Department of Human Resources
Helen Lee Harvell Jones v. Department of Human Resources
Dalton I^lton Sr. v. Department of Human Resources
Colty S. Hughes v. Department of Human Resources
Gary Eugene Honeycutt v. Department of Human Resources
Vicki C. Conn v. Department of Human Resources
Melvin L. Miller Sr. v. Department of Human Resources
Robert L. Hicks v. Department of Human Resources
Darryl D. Leedy v. Department of Human Resources
William Heckstall v. Department of Human Resources
Luther Hatcher v. Department of Human Resources
Bryan Jeffrey Cole v. Department of Human Resources
Anthony E. BuUajd v. Department of Human Resources
Donald E. Height v. Department of Human Resources
Dexter L. Chambers v. Department of Human Resources
Ronald E. Johnson v. Department of Human Resources
Roger Moore v. Department of Human Resources
Alvin Lee Martin v. Department of Human Resources
Robert Young v. Department of Human Resources
Henry M. Dillaid v. Department of Human Resources
Antonio Townsend v. Department of Human Resources
Keith M. Gray v. Department of Human Resources
Troy E. Pinkney v. Department of Human Resources
Anthoriy A. Macon v. Department of Human Resources
Walter Lee Corbett v. Department of Human Resources
Joseph E. Kemstine v. Department of Human Resources
Alvin M. Davis v. Department of Human Resources
Thomas M. Bindwell HI v. Department of Human Resources
Joe Louis Mayo v. Department of Human Resources
Bobhy Lewis Smith v. Department of Human Resources
Louis C. Cade v. Department of Human Resources
Richard J. Swarm v. Department of Human Resources
Nash Andrew Newsome v. Department of Human Resources
James E. Watson v. Department of Human Resources
Robert Lee Barrett v. Department of Human Resources
Betty A. Williams, Fred E. Jones v. Department of Human Resources
Jeff A. Taylor v. Department of Human Resources
Eric G. Sykes v. Department of Human Resources
Morris Ray Bethel v. Department of Human Resources
Willie C. Hollis v. Department of Human Resources
Ernest N. Pruitt Jr. v. Department of Human Resources
Michael P. McCay v. Department of Human Resources
Bemadett Cook v. Department of Human Resources
Lem Person v. Department of Human Resources
Bobty Lee McCulleis Jr. v. Department of Human Resources
Randall R. Rhodes v. Department of Human Resources
Glen Nelson Washington v. Department of Human Resources
Michael V. Dockery v. Department of Human Resources
Flcyd E. Bailey v. Department of Human Resources
Dennis W. Nolan v. E>epartment of Human Resources
Robert Calvin Cormor v. Department of Human Resources
James D. Williams v. Department of Human Resources
Marty Franzen v. Department of Human Resources
90 CSE 1146
Morgan
08/11/94
91 CSE 0660
Morgan
08/11/94
91 CSE 1183
Morgan
08/11/94
92 CSE 0532
Morgan
07/13/94
92 CSE 1199
Morgan
08/10/94
92 CSE 1207
Morgan
08/10/94
92 CSE 1268
Morgan
08/10/94
92 CSE 1372
Morgan
08/10/94
92 CSE 1591
Morgan
08/10/94
93 CSE 0591
Morgan
08/11/94
93 CSE 1077
Reilly
03/14/94
93 CSE 1082
Mann
05/24/94
93 CSE 1091
Bccton
03/30/94
93 CSE 1094
Nesncw
06/13/94
93 CSE 1110
Morgan
08/11/94
93 CSE 1124
West
03/28/94
93 CSE 1125
Becton
03/30/94
93 CSE 1127
Bee ton
04/14/94
93 CSE 1128
Nesnow
04/04/94
93 CSE 1133
Reilly
04/18/94
93 CSE 1135
Nesnow
06/13/94
93 CSE 1139
Becton
03/30/94
93 CSE 1140
Nesnow
06/28/94
93 CSE 1148
Mann
03/29/94
93 CSE 1149
Gray
04/26/94
93 CSE 1150
Reilly
03/30/94
93 CSE 1151
Morgan
07/15/94
93 CSE 1152
Morgan
08/04/94
93 CSE 1155
Morgan
08/02/94
93 CSE 1161
West
04/19/94
93 CSE 1162
Nesnow
06/16/94
93 CSE 1166
Morrison
06/16/94
93 CSE 1167
Reilly
06/17/94
93 CSE 1170
Marm
03/17/94
93 CSE 1171
Gray
04/26/94
93 CSE 1172
Morrison
04/20/94
93 CSE 1178
Nesnow
04/20/94
93 CSE 1180
Morgan
07/15/94
93 CSE 1181
Becton
04/20/94
93 CSE 1188
West
07/11/94
93 CSE 1191
Becton
05/09/94
93 CSE 1197
Nesncw
06/28/94
93 CSE 1198
Morgan
08/02/94
93 CSE 1202
Gray
04/27/94
93 CSE 1214
Morrison
06/16/94
93 CSE 1215
Reilly
06/17/94
93 CSE 1219
Nesnow
06/16/94
93 CSE 1221
Morgan
08/02/94
93 CSE 1222
Morgan
07/15/94
93 CSE 1227
Mann
07/07/94
93 CSE 1254
Morrison
04/27/94
93 CSE 1258
West
04/19/94
93 CSE 1259
West
04/19/94
93 CSE 1264
Morgan
07/15/94
857
9:11
NORTH CAROLINA REGISTER
September 1, 1994
CONTESTED CASE DECISIONS
AGENCY
Vaughn D. Pearsall v. Department of Human Resources
Larry D. Dawson v. Department of Human Resources
McDaniel Teeter Jr. v. Department of Human Resources
King D. Graham v. Department of Human Resources
Derek Watson v. Department of Human Resources
Luther Borden v. Department of Human Resources
Waller B. Lester v. Department of Human Resources
Larry Cornelius Smith v. Department of Human Resources
Robert C. Lee Jr. v. Department of Human Resources
Sidn^ Ray Tuggle Jr. v. Department of Human Resources
Michael A. Amos v. Department of Human Resources
Benjamin McCormick v. Department of Human Resources
Gregory N. Winl^ v. Department of Human Resources
Ronald Brown v. Department of Human Resources
James L. Phillips v. Department of Human Resources
George Aaron Collins v. Department of Human Resources
Samuel L. Dodd v. Department of Human Resources
William A. SelleiB v. Department of Human Resources
Jerry Mclver v. Department of Human Resources
Johnny B. Little v. Department of Human Resources
Kenneth W. Cooper v. Department of Human Resources
Nathan D. Winston v. Department of Human Resources
Bobty Charles Coleman v. Department of Human Resources
Charles W. NorTwod Jr. v. Department of Human Resources
David L. Terry v. Department of Human Resources
Audwin Linds^ v. Department of Human Resources
Steven A. Elmquist v. Department of Human Resources
Kelvin Dean Jackson v. Department of Human Resources
Melvin Lewis Griffin v. Department of Human Resources
Dennis E. Fountain Jr. v. Department of Human Resources
Mark E. Rogers v. Department of Human Resources
Edna VonCarmon v. Department of Human Resources
Ephrom Sparkman Jr. v. Department of Human Resources
Thomas A. Ayers v. Department of Human Resources
Daniel Thomas Hefele v. Department of Human Resources
Gilbert J. Gutierrez v. Department of Human Resources
Alton D. Johnson v. Department of Human Resources
Darryl C. Thompson v. Department of Human Resources
Chester Sanders v. Department of Human Resources
Rodn^ Guyton v. Department of Human Resources
Donald W. Clark v. Department of Human Resources
William E. David Jr. v. Department of Human Resources
Arthur Lee Carter v. Department of Human Resources
John J. Gabriel v. Department of Human Resources
Robert Hayes v. Department of Human Resources
Clark Anthoity Bryant v. Department of Human Resources
Timothy D. Evans v. Department of Human Resources
Billy Eduard Smith v. Department of Human Resources
Allen D. Terrell v. Department of Human Resources
Ray C. Moses v. Department of Human Resources
Mickey Bridget! v. Department of Human Resources
Bart Ransom v. Department of Human Resources
William H. Simpson Sr. v. Department of Human Resources
Clarence J. Gallir^ Jr v. Department of Human Resources
James D. McCIure Jr v. Department of Human Resources
Christopher Ivan Smith v. Department of Human Resources
Douglas L. Cherrix v. Department of Human Resources
Dwayne Lamonl Thompson v. Department of Human Resources
Horace Lee Bass v. Department of Human Resources
Michael Wilder v. Department of Human Resources
James A. Cephas v. Department of Human Resources
Edy^ni E. Furr v. Department of Human Resources
Mark E. Campbell v. Department of Human Resources
William Ellis v. Department of Human Resources
Henry A. Harriel Jr. v. Department of Human Resources
John H. Fortner Jr. v. Department of Human Resources
Mike Johnson v. Department of Human Resources
Barriet Easterling v. Department of Human Resources
CASE
DATE OF PUBLISHED DECISION
NUMBER
AU
DECISION REGISTER CITATION
93 CSE 1267
Becton
04/20/94
93 CSE 1273
Morrison
07/07/94
93 CSE 1274
Morrison
06/30/94
93 CSE 1275
B&cton
05/18/94
93 CSE 1283
Reilly
06/30/94
93 CSE 1284
West
06/23/94
93 CSE 1287
Nesnow
06/28/94
93 CSE 1302
Morrison
06/30/94
93 CSE 1303
Reilly
06/30/94
93 CSE 1307
West
04/25/94
93 CSE 1308
West
07/15/94
93 CSE 1313
Moi^an
08/02/94
93 CSE 1316
Becton
06/14/94
93 CSE 1318
Becton
06/29/94
93 CSE 1326
Reilly
06/17/94
93 CSE 1331
West
04/25/94
93 CSE 1357
Gray
03/31/94
93 CSE 1359
Morrison
04/20/94
93 CSE 1362
Reilly
06/30/94
93 CSE 1363
West
06/23/94
93 CSE 1364
West
04/27/94
93 CSE 1365
Nesnow
07/07/94
93 CSE 1368
Morgan
08/02/94
93 CSE 1385
West
06/13/94
93 CSE 1386
Mann
05/18/94
93 CSE 1390
Morrison
07/15/94
93 CSE 1392
Reilly
04/29/94
93 CSE 1394
West
06/13/94
93 CSE 1412
Morgan
08/02/94
93 CSE 1414
Chess
05/13/94
93 CSE 1415
Mann
05/03/94
93 CSE 1417
Morrison
06/14/94
93 CSE 1422
Morgan
08/04/94
93 CSE 1431
Morrison
06/30/94
93 CSE 1432
Morrison
04/28/94
93 CSE 1433
Morrison
05/13/94
93 CSE 1434
Reilly
04/29/94
93 CSE 1435
Reilly
06/30/94
93 CSE 1437
West
04/19/94
93 CSE 1439
West
04/21/94
93 CSE 1441
Nesnow
05/13/94
93 CSE 1442
Nesnow
05/02/94
93 CSE 1445
Moigan
08/10/94
93 CSE 1452
Chess
05/16/94
93 CSE 1453
Mann
07/07/94
93 CSE 1455
Gray
06/30/94
93 CSE 1460
Reilly
04/28/94
93 CSE 1461
West
04/19/94
93 CSE 1463
Nesnow
05/02/94
93 CSE 1464
Nesnow
04/28/94
93 CSE 1468
Becton
05/24/94
93 CSE 1495
Morrison
04/29/94
93 CSE 1497
West
04/19/94
93 CSE 1499
Morgan
08/02/94
93 CSE 1500
Becton
05/13/94
93 CSE 1510
Gray
07/07/94
93 CSE 1512
Gray
05/13/94
93 CSE 1515
Morrison
04/21/94
93 CSE 1520
Morrison
05/13/94
93 CSE 1521
Reilly
04/28/94
93 CSE 1523
Reilly
05/13/94
93 CSE 1524
Reilly
06/17/94
93 CSE 1537
Nesnow
05/19/94
93 CSE 1540
Morgan
08/02/94
93 CSE 1541
Morgan
08/04/94
93 CSE 1542
Morgan
08/02/94
93 CSE 1544
Morgan
08/04/94
93 CSE 1560
Mann
05/18/94
9:11
NORTH CAROLINA REGISTER
September 1, 1994
858
CONTESTED CASE DECISIONS
AGENCY
Wade A. Burgeas v. Department of Human Resources
Billy Dale Beaney v. Department of Human Resources
James E. Wiggins Sr. v. Department of Human Resources
Tony A. Draughon v. Department of Human Resources
Timothy J. Jones v. Department of Human Resources
Randall E. Hunter v. Department of Human Resources
Cyrus R. Luallen v. Department of Human Resources
Willie Hawkins v. Department of Human Resources
B.A. Sellen v. Department of Human Resources
Alton E. Simpson Jr. v. Department of Human Resources
Johnr^- T. Usher v. Department of Human Resources
Tim H. Maxwell v. Department of Human Resources
Charles Darrell Matthews v. Department of Human Resources
John William Vance Jr. v. Department of Human Resources
Bobty R. Sanders v. Department of Human Resources
Michael S. Rhyncs v. Department of Human Resources
Brian Gilmore v. Department of Human Resources
Jesse Jeremy Bullock v. Department of Human Resources
Ronald E. Loweke v. Department of Human Resources
Robert D. I^ii<£r v. Department of Human Resources
Charles F. McKirahan Jr. v. Department of Human Resources
Bennie E. Hicks v. Department of Human Resources
Herbert Council v. Department of Human Resources
Richard Rachel v. Department of Human Resources
Alan V. Teubert v. Department of Human Resources
Henry L. Ward Jr. v. Department of Human Resources
Benjamin J. Stroud v. Department of Human Resources
Charles Leonard Fletcher v. Department of Human Resources
Tony A. Miles v. Department of Human Resources
Dw^ne L. Allen v. Department of Human Resources
Joe C. Dean v. Department of Human Resources
\fcmon Bullock v. Department of Human Resources
Jessie Liles v. Department of Human Resources
Raymond Scott Eaton v. Department of Human Resources
Royston D. Blandford HI v. Department of Human Resources
Michael L. Franks v. Department of Human Resources
Wanda Jean Lee Daniels v. Department of Human Resources
Daron Wayne Smith v. Department of Human Resources
John D. Melton v. Department of Human Resources
Michael Lynn Jones v. Department of Human Resources
Richard Eugene Dunn v. Department of Human Resources
CASE
DATE OF PUBLISHED DECISION
NUMBER
ALJ
DECISION REGISTER CITATION
93 CSE 1568
Morrison
04/28/94
93 CSE 1569
Morrison
05/13/94
93 CSE 1571
Morrison
05/13/94
93 CSE 1572
Reilly
07/07/94
93 CSE 1576
West
04/19/94
93 CSE 1579
West
04/19/94
93 CSE 1583
Nesnow
06/16/94
93 CSE 1585
Morgan
08/02/94
93 CSE 1586
Morgan
08/02/94
93 CSE 1591
Becion
04/20/94
93 CSE 1592
Chess
05/19/94
93 CSE 1594
Chess
06/30/94
93 CSE 1596
West
06/13/94
93 CSE 1597
Becion
05/13/94
93 CSE 1598
Nesncw
07/25/94
93 CSE 1599
Nesnow
06/30/94
93 CSE 1615
Chess
05/13/94
93 CSE 1632
Morrison
06/14/94
93 CSE 1635
Reilly
06/17/94
93 CSE 1637
Reilly
06/29/94
93 CSE 1640
West
06/14/94
93 CSE 1641
Nesncw
07/25/94
93 CSE 1643
Nesncw
07/25/94
93 CSE 1644
Morgan
08/02/94
93 CSE 1645
Morgan
08/10/94
93 CSE 1646
Morgan
08/02/94
93 CSE 1648
Bee ton
05/19/94
93 CSE 1649
Bee ton
07/20/94
93 CSE 1654
Mann
05/24/94
93 CSE 1655
Mann
05/17/94
93 CSE 1715
Gt^
05/23/94
93 CSE 1743
Nesncw
07/07/94
93 CSE 1757
Morgan
08/02/94
93 CSE 1761
Bee ton
06/29/94
94 CSE 0095
West
04/19/94
94 CSE 0142
Chess
08/16/94
94 CSE 0266
Morgan
08/02/94
94 CSE 0300
Gray
06/27/94
94 CSE 0324
Nesnow
07/25/94
94 CSE 0402
Morgan
08/02/94
94 CSE 0494
West
07/29/94
JUSTICE
Alarm Systems Licensing Board
AlarTn Systems Licensing Board v. George P. Baker
Private Protective Services Board
93 DOJ 0457
Nesncw
03/10/94
Rex Allen Jefferies v. Pri\ate Protective Services Board
Larry C. Hopkins v. Private Protective Services Board
Gregory K. Brooks v. Private Protective Services Board
Stephen M. Rose v. Private Protective Services Board
Lemuel Lee Clark Jr. v. Pri\ate Protective Services Board
Dexter R. Usher v. Pri\ate F*rutective Services Board
93 DOJ 0647
Reilly
08/01/94
93 DOJ 1618
Morrison
03/07/94
94 DOJ 0008
Nesnow
06/28/94
94 DOJ 0359
Nesncw
05/19/94
94 DOJ 0360
Nesncw
05/19/94
94 DOJ 0648
Reilly
08/15/94
Training and Standards Division
Curtiss Lance I^Dleal v. Criminal Justice Ed. & Training Slds. Comm.
Willie David Moore v. Criminal Justice Ed. & Training Stds. Comm.
Glenn Travis Stout v. Criminal Justice Ed. & Training Skis. Comm.
Steven W. Wray v. Sheriffs Education & Training Standards Comm.
J. Stevan North v. Sheriffs' Education & Training Standards Comm.
Gregory Blake Manning v. Criminal Justice Ed. & Training Skis. Comm.
Russell Pinkellon Jr. v. Sheriffs' Education & Training Slds. Comm.
William Franklin Sheetz v. Sheriffs* Education & Training Side. Comm.
Nelson F^con v. Sheriffs' Education & Training Side. Comm.
93 DOJ 0231
Chess
03/28/94
93 DOJ 1071
Nesnow
04/11/94
93 DOJ 1409
GiBy
03/03/94
93 DOJ 1803
Chess
06/29/94
94 DOJ 0040
Chess
06/16/94
94 DOJ 0048
Gray
03/29/94
94 DOJ 0118
Gray
08/10/94
94 DOJ 0196
Chess
06/16/94
94 DOJ 0611
Mann
08/12/94
9:3 NCR 218
859
9:11
NORTH CAROLINA REGISTER
September 1, 1994
CONTESTED CASE DECISIONS
AGENCY
CASE
NUMBER
ALJ
DATE OF
DECISION
PUBLISHED DECISION
REGISTER CITATION
MORTUARY SCIENCE
Mortuary Science v. Perry J. Brown, & Brown's Funeral Dircctore
PUBLIC EDUCATION
93 BMS 0532 Chess
NaDcy Walson v, Boaid of Education 93 EDO 0234
Janet L. Wilcox v. Carteret County Boaid of Education 93 EDC 0451
Annice Granville, Phillip J. Granville v. Onslow County Bd. of Education 93 EDC 0742
Mary Ann SciuUo & Frank Sciullo on behalf of their minor child, 94 EDC 0044
Samuel W. Sciullo v. State Boaid of Education
STATE HEALTH BE3>iEFITS OFFICE
Linda C. Campbell v. Teacheis & St Emp Major Medical Plan
Timothy L. Coggins v. Teachem' & St Emp Comp Major Med Plan
STATE PERSONNEL
Agricultural and Technical State University
Linda D. Williams v. Agricultuol and Technical State University
Juanila D. Murphy v. Agricultural and Technical State Univeisity
Thomas M. Simpson v. Agricultuial and Technical State Univereity
Pricella M. Curtis v. A&T State Univereity Curriculum & Instruction
Department of Agriculture
Donald H. Crawfoid v. Department of AgricultuK
Catawba County
Sandra J. Cunningham v. Catawba County
North CaroHna Central University
Ha-Vilyah Ha-She'B v. NCCU
Cherry Hospital
Charles F. Fields v. Cherry Hospital
Department of Commerce
Ruth Daniel-Itrty v. Department of Commerce
Department of Correction
Leiand K. Williams v. Department of Correction
Elrqy Lewis v. North Central Area - Dept of Correction, Robert Lewis
Steven R. Kellison v. Department of Correction
Bert Esworthy v. Department of Correction
Merron Burrus v. Department of Correction
Lewis Alsbrook v. Department of Correction, Morrison Youth Institution
Junius C. I^e v. Dept. of Correction, Secy. Franklin Freeman
Richaid Hopkins v. Department of Correction
Alfred B. Hunt v. Department of Correction
Charles Home v. Equal Emp. Opportunity Officer & Dept. of Correction
Adrian E. Graham v. Intensive Probation/Ikrole
93 INS 0410
93 INS 0929
93 OSP 0089
93 OSP 0708
93 OSP 1393
94 OSP 0748
93 OSP 0875
94 OSP 0498
93 OSP 0725
Chess
03/28/94
Chess
02/28/94
9:2 NCR 108
Mann
02/21/94
Mann
08/01/94
9:11 NCR 863
Gray
07/22/94
Becton 04/22/94
Morrison 03/04/94
Chess 03/23/94
Morrison 03/16/94
Gray 03/24/94
Gray 08/17/94
94 OSP 0108 Reilly 05/23/94
93 OSP 1097 Reilly 04/29/94
Becton 04/13/94
Morrison 06/15/94
03/04/94
91 OSP 1287
Chess
02/22/94
92 OSP 1770
Becton
05/24/94
93 OSP 0283
Chess
06/15/94
93 OSP 0711
Chess
04/21/94
93 OSP 1145
West
06/01/94
93 OSP 1739
West
07/20/94
93 OSP 1794
Mann
07/08/94
94 OSP 0041
Chess
06/16/94
94 OSP 0243
Reilly
04/20/94
94 OSP 0244
Ncsnow
06/16/94
94 OSP 0261
Morrison
04/26/94
9:4 NCR 292
9:3 NCR 211
9:1 NCR 63
9:6 NCR 395
Eastern Correctional Institution
Roy A. Keel & Zebedee Taylor v. Eastern Correctional Institution
Roy A. Keel & Zebedee Taylor v. Eastern Correctional Institution
Guilford Correctional Center
Ann R. Williams v. Guilford Correctional Center #4440
94 OSP 0160**
94 OSP 0256**
94 OSP 0428
Nesnow
Nesnow
West
07/20/94
07/20/94
06/22/94
9:11
NORTH CAROLINA REGISTER
September 1, 1994
860
CONTESTED CASE DECISIONS
AGENCY
CASE
NUMBER
ALJ
DATE OF
DECISION
PUBLISHED DECISION
REGISTER CITATION
90 OSP 0239
Chess
04/28/94
91 OSP 0401
West
03/18/94
92 OSP 1463
ReiUy
03/21/94
94 OSP 0572
Mann
07/12/94
Cosmetic Art Examiners
Mary Quaintancc v. N.C. Slate Boaid of Cosmetic Art ExamineiB 94 OSP 0372 Chess 06/14/94
Department of Crime Control and PubUc Strfety
Don R. Massenbur^g v. Department of Crime Control & Public Safety
Fred L. Kearney v. Department of Crime Control & Public Safely
Sylvia Nance v. Department of Crime Control & Public Safety
Lewis G. Baker v. Crime Control & Public Safely, Office Aij. General
Durham County Health Department
Lylla Denell Stockton v. Durham County Health Department 93 OSP 1780 Gray 05/25/94
EUzabeth Gty State University
James Charles Knox v. Elizabeth City State University 94 OSP 0207 Gray 06/17/94
Employment Security Commisdon of North Carolina
Rejeanne B. LeFrancois v. Emplcyment Security Commission of N.C. 93 OSP 1069 West 04/08/94
Department of Environment, Health, and Natural Resources
Di\ision of Marine Fisheries
William D. Nicely v. Environment, Health. & Natural Resources 92 OSP 1454 Becton 05/04/94
FayetteviUe State University
Roscoe L. Williams v. FayetteviUe Stale University 93 OSP 0487 West 06/22/94
Department of Human Resources
Inez Lalta v. Department of Human Resources
Charia S. Davis v. Department of Human Resources
Rose Mary Taylor v. Department of Human Resources, Murdoch Center
David R. Rodgers v. Timmy Summerville, Stonewall Jackson School
Craven County Department of Social Senices
Shirley A. Holland v. Craven Cty. Dept. /Social Services & Craven Cly.
Nettie Jane Godwin (Lawhom) v. Craven Cty. DSS & Craven Cty.
Violet P. Kelly v. Craven Cty. Dept. of Social Services & Craven Cty.
Durham County Department of Social Services
Belinda F Jones v. Daniel Hudgins, Durham Cty Dept of Social Svcs 93 OSP 0728 Chess 04/1 1/94
Mayn-ood County Department of Social Services
Dorothy Morrow v. Haywood County Department of Social Services 94 OSP 0186 West 06/17/94
Pamlico County Department of Social Services
Mrs. Dietra C. Jones v Pamlico Department of Social Services 94 OSP 0251 Chess 08/09/94
Lee County Health Department
James Shackleion v. Lee County Health Department 94 OSP 0344 Gray 08/17/94
Mental Health/Mental Retardation
Yvonne G. Johnson v. Blue Ridge Mental Health 93 OSP 1604 Becton 03/18/94
93 OSP 0830
Becton
03/28/94
93 OSP 1762
Gr^
03/03/94
93 OSP 0047
Gray
05/06/94
94 OSP 0087
Chess
03/16/94
9:5 NCR 333
93 OSP 1606
Gray
07/01/94
93 OSP 1607
Gray
07/18/94
9:9 NCR 655
93 OSP 1805
Reilly
07/05/94
861
9:11
NORTH CAROUNA REGISTER
September 1, 1994
CONTESTED CASE DECISIONS
AGENCY
CASE
NUMBER
ALJ
DATE OF
DECISION
PUBLISHED DECISION
REGISTER CITATION
Wik£ County Mental Health, Developmenkzl Disabilities, and Substance Abuse Senices
Julia Morgan Brannon v. Wake County MH/DD/SAS 94 DSP 0214
Reilly
04/14/94
N.C. State University
Laura K. Reynolds v. N.C. State Univeraity - Dept. of Public Safety
Department of Transportation
Phyllie W. Newnam v. Department of Transporfation
Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y. Dept. of Transportation
Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y. Dept. of Transporfation
Betsy Johnston PDwell v. Department of Transporfation
Arnold Craig v. Samuel Hunt, Secretary Department of Transporfation
Susan H. Cole v. Department of Transporfation, Div. of Motor Vehicles
Clyde Lem Hairston v. Department of Transporfation
Darrell H. Wise v. Department of Transporfation
Henry C. Puegh v. Department of Transporfation
Ketmeth Ray Harvey v. Department of Transporfation
Michael Bryant v. Department of Transporfation
University of North Carolina at Chapel Hill
Eric W. Browning v. UNC-Chapel Hill
UNC Hospitals
Barry Alonzo Nichols v. UNC Hospitals Central Dist. Sect.
Wxke County School System
Lula Mae Freeman v. Wake County School System
The Whitater School
Dwayne R. Cooke v. The Whitaker School
STATE TREASURER
Retirement Systems Division
Molly Wiebenson v. Bd./Trustees/Teachera' & State Employees' Ret. Sys.
Judith A. Dorman v. Bd./Trustees/Teacheis' & State Emplcyces' Ret. Sys.
Nathan Fields v. Bd./Tnjstees/Teacheis' & State Emplcyees' Ret. Sys.
John C. Russell v. Bd./Trustees/Teacheis' & State Employees' Ret. Sys.
Robert A. Slade v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. System
Cormie B. Grant v. Bd. /Trustees/Teachers' & State Employees' Ret. Sys.
James E. Walker, Ind. & Admin for the Estate of Sarah S. Walker v. Bd./
Trustees/N.C. Local Govt. Emp. Ret. System
Elizabeth M. Dudley v. Bd. /Trustees/Teachers' & State Emps' Ret. Sys.
Kenneth A. Glerm v. Bd./Trustees/Teacheis' & St Employees' Ret. Sys.
Joseph Fulton v. Bd./Tnistees/TeachetB' & Stale Employees' Ret. Sys.
Deborah W. Stewart v. Bd./Trustees/Teacheis' & State Employees'
Ret. Sys. and Anthotiy L. Hope & Derrick L. Hope
UNIVERSITY OF NORTH CAROLINA
Nixon Omolodun v. UNC Physicians and Associates
92 OSP 0828 Morgan 05/26/94
92 OSP 1799
Morgan
08/11/94
93 OSP 0297*"
Morrison
03/10/94
9:1 NCR
60
93 OSP 0500*'
Morrison
03/10/94
9:1 NCR
60
93 OSP 0550
Morrison
03/28/94
93 OSP 0586
Nesnow
07/11/94
93 OSP 0908
Morrison
07/15/94
93 OSP 0944
Chess
02/28/94
93 OSP 1353
Gray
07/26/94
93 OSP 1710
Nesnow
05/24/94
94 OSP 0423
Morrison
08/17/94
94 OSP 0728
Chess
08/15/94
93 OSP 0925
94 OSP 0509
94 OSP 0576
94 OSP 0328
Morrison 05/03/94
Morrison 06/15/94
Morrison 06/28/94
Chess
06/02/94
9:5 NCR 342
92 DST 0015
Morgan
05/26/94
9:6 NCR
403
92 DST 0223
Morgan
08/11/94
93 DST 0161
Morrison
05/18/94
93 DST 0164
West
03/07/94
93 DST 0785
Bee ton
03/18/94
9:1 NCR
68
93 DST 0883
Chess
06/15/94
93 DST 1054
Becton
05/31/94
9:7 NCR
490
93 DST 1474
Nesnow
03/28/94
93 DST 1612
Morrison
05/18/94
93 DST 1731
Becton
05/25/94
94 DST 0045
Nesnow
07/25/94
9:10 NCR
768
94 UNC 0295 Chess
06/27/94
9:11
NORTH CAROLINA REGISTER
September 1, 1994
862
CONTESTED CASE DECISIONS
STATE OF NORTH CAROLINA
COUNTY OF ONSLXDW
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
93 EDC 0742
ANNICE GRANVILLE
PHILLIP J. GRANVILLE,
Petitioner,
ONSLOW COUNTY BOARD OF EDUCATION,
Respondent,
FINAL DEaSION
This contested case was heard in Jacksonville, Onslow County, North Carolina, beginning on the 10th
day of May, 1994, and continuing through May 12, 1994. The record closed with the completion of the
transcript which was filed in the Office of Administrative Hearings on June 15, 1994.
APPEARANCES
For Petitioners:
For Respondent:
Mrs. Annice Granville
Mr. Phillip J. Granville
504 Redwood Place
Jacksonville, North Carolina 28540
Petitioners - pro se
Ann L. Majestic, Esquire
Tharrington, Smith & Hargrove
209 Fayetteville Street Mall
P. O. Box 1151
Raleigh, North Carolina 27602-1151
Attorney for Respondent
WITNESSES
For Petitioners:
Stephen Hooper
Aimice Granville
For Respondent:
Carolyn King
David Gamer-McGraw
Linda Sutherland
Opal Amos
Lynn Mills
Tracey Amey
Elaine Justice
Thomasine Kennedy
For Petitioners:
EXHIBITS
Petitioners' Exhibits # P2, 3, 5, 13, 15, 16, 17 and 18b.
Respondent's Exhibits # R28, 39, 41, 43, 51 and 52.
863
9:11
NORTH CAROLINA REGISTER
September 1, 1994
CONTESTED CASE DECISIONS
For Respondent: Respondent's Exhibits # Rl, la, lb. Id, 2, 2a, 4, 6, 8, 10, 11, 16, 17, 18,
20, 21, 22, 23, 27, 29, 31, 32, 34, 35, 36, 37, 37a, 38, 40, 42, 43, 45, 47,
48, 50, 56, 57, 60, 61 and 67.
ISSUES
1. Was the educational program proposed by Respondent for Sean Granville for 1993-94
inappropriate within the meaning of state and federal special education laws?
2. Was the educational program provided to Sean Granville by Grace Baptist School for 1993-94
appropriate and in substantial compliance with the requirements of state and federal special education laws?
3. Are Petitioners entitled to reimbursement for the cost of Sean's education placement at Grace
Baptist School for the 1993-94 school year?
4. Are Petitioners entitled to prospective placement and costs at Grace Baptist School for the
1994-95 school year?
STIPULATIONS
On May 10, 1994, the parties filed a Prehearing Order which contained, inter alia , the following
Stipulations:
[3.] In addition to the other stipulations contained herein, the parties hereto stipulate and
agree with respect to the following undisputed facts: Sean Granville is a sixth grade student
eligible for enrollment in respondent school district. During the 1993-94 school year Sean
has been enrolled in Grace Baptist School in Onslow County. During the 1992-93 school
year Sean was enrolled as a fifth grade student at Northwoods Elementary School in the
Onslow County Public School System. Sean has been identified as a student with a learning
disability and a speech impairment.
12 & 13. The Petitioners and Respondent contend that the contested issues to be tried
by the Administrative Law Judge are as follows:
a. Was the educational program proposed by Respondent for Sean
Granville for 1993-1994 inappropriate within the meaning of state
and federal special education laws?
b. Is the educational program provided to Sean Granville by Grace
Baptist School for 1993-1994 appropriate and in substantial
compliance with the requirements of state and federal special
educational laws?
c. Are Petitioners entitled to reimbursement for the cost of Sean's
educational placement at Grace Baptist School for the 1993-94
school year?
d. Are Petitioners entitled to prospective placement and costs at Grace
Baptist School for the 1994-1995 school year?
Based upon the Stipulations of the parties and by the greater weight of the evidence admitted at the
hearing, the Chief Administrative Law Judge makes the following:
9:11 NORTH CAROLINA REGISTER September 1, 1994 864
CONTESTED CASE DECISIONS
FINDINGS OF FACT
1. Annice Granville and Phillip Granville (Petitioners) are citizens and residents of Onslow
County, North Carolina, and are the parents of their minor child, Sean Granville (hereinafter Sean). Sean
was bom on February 12, 1982, and currently is twelve years old.
2. Respondent is the local education agency responsible for providing a free, appropriate public
education to Sean.
3. During the 1987-88 school year, Sean's kindergarten year, Sean was referred, identified and
placed as a student with special needs based upon a speech impairment. Sean was provided with speech
therapy services pursuant to an Individualized Education Plan (lEP).
4. Respondent informed Petitioner of her notice and appeal rights as regards Sean's lEP and
Petitioner acknowledged receipt of the Parental rights and Appeals Procedure on November 17, 1987.
5. During the 1988-89 school year, Sean's first grade year, he v/as recommended by his teachers
for further testing because of academic difficulties.
6. In the spring of 1989, after completion of testing, Sean was identified and placed as a student
with learning disabilities in the area of written language, based on discrepancies between his IQ and his written
expression and reading skills. Sean was mainstreamed or placed in the regular classroom for most of the
school day, with special services provided through "pull-out" from the classroom and consultation with the
regular classroom teacher provided by the exceptional children's teachers. Sean was removed from the regular
classroom less than 21 % of the day. His "placement" on the continuum of special educational services was,
therefore, "regular class" placement.
7. Sean's lEP for the period from March 16, 1989, through March 15, 1990, addressed both
Sean's sp)eech deficiency and his learning disability.
8. Respondent again informed Petitioner of her notice and appeal rights as regards Sean's
placement and she acknowledged receipt of the Handbook of Parents Rights on March 16, 1989.
9. Sean's lEP was reviewed on or about March 14, 1990, during his second grade year. The
lEP maintained his placement as a regular student; i.e., receiving services outside the regular education
environment for less than twenty-one percent (21 %) of the day. The goals in the revised lEP addressed Sean's
needs in the areas of reading recognition, comprehension and word attack skills.
10. During Sean's third grade year (1990-91), Petitioners placed him at the St. Francis of Assisi
School, a private parochial school. Respondent continued to provide exceptional children's services to Sean
in the areas of speech and language and learning disabilities.
11. Respondent reviewed Sean's services on or about March 8, 1991. The resultant lEP
addressed both Sean's speech deficiency and his learning disability.
12. Sean enrolled at Respondent's Northwoods Elementary School for the 1991-92 school year,
his fourth grade year. Respondent continued to provide Sean exceptional children's services through a regular
classroom placement, i.e., less than twenty-one percent (21%) of the day.
13. Respondent reviewed Sean's lEP again in March of 1992 and recommended continuation of
services on a regular basis, noting that "student is able to be successful in regular educational settings. ..."
The lEP stated short-term objectives including improvement of reading comprehension, spelling, handwriting,
and speech. The lEP also contained testing modifications.
865 9:11 NORTH CAROLINA REGISTER September 1, 1994
CONTESTED CASE DECISIONS
14. Sean made satisfactory academic progress and benefitted educationally from special education
services under the lEP. His final grade period for 1992-1993 (fifth grade) showed: Reading - B; Language -
B; Spelling - C; handwriting - C; Social Studies - C; Mathematics - C; Science - B; and Health - B. Special
education services were rendered in a competent manner with coordination between the regular classroom and
special education teachers.
15. Respondent completed the next annual review of Sean's lEP on or about March 19, 1993.
Instructional objectives in the lEP for the period from March 19, 1993, to March 18, 1994, included writing
a four-sentence paragraph, story writing, legible handwriting, spelling at eighty percent (80%) accuracy,
improvement of reading comprehension, vocabulary enhancement, and a continuation of speech therapy. The
revised IBP contained expanded testing modifications including answers to be recorded by the test proctor,
extended time for completion of multi-part tests, and testing in a separate room.
16. During the period Sean attended schools operated by Respondent, and was receiving
exceptional children services, his diagnostic tests, including end of course testing and California Achievement
tests, indicated an overall pattern of progress in Sean's identified areas of exceptionality.
17. During the Spring of 1993, Respondent called a meeting of Sean's teachers and other school
persoimel with expertise in learning disabilities to discuss with Petitioner her concerns about Sean's progress.
18. At the Spring 1993 meeting Respondent recommended that Sean undergo additional testing
including evaluation for potential neurological deficits. Petitioner initially declined to grant permission for
this additional testing.
19. On or about May 14, 1993, Petitioner agreed to an evaluation to assess Sean's level of
educational performance and his preferred learning styles. Petitioner later indicated that she was agreeable
to a psychological evaluation of Sean. Respondent subsequently paid for an evaluation by Dr. Greg Walton,
a private psychologist. Dr. Walton's evaluation found that Sean had a significant deficit in his written
language abilities, apparently arising from an attention/concentration deficit as well as a finding of intellectual
strengths. Sean's verbal and full scale scores placed him in the average range with performance scale at the
high average range (WISC - III) . Results from the Bender Motor Gestalt test indicate Sean has a visual-motor
deficit. The administration of the Woodcock-Johnson Psychoeducational test indicated that Sean has a
significant visual-perceptual-motor deficit.
20. On July 14, 1993, Petitioner filed a petition for a contested case hearing concerning Sean's
educational placement.
21. Based upon the information obtained through the additional educational and psychological
evaluations completed during the summer of 1993, Respondent revised Sean's placement in a proposed lEP
for the 1993-94 school year. Respondent reviewed the proposed lEP with Petitioner in an August 20, 1993,
meeting.
22. The proposed lEP included specific goals in the area of reading, visual percep-
tion/compensation skills, fine motor skills, written expression, and speech. Respondent also notified
Petitioners that Sean might qualify for services in mathematics. The proposed lEP included specific strategies
intended to remediate Sean's learning disability, including blocking, key words location techniques, color
coding and fading, use of a computer, mnemonics, and other strategies.
23. Sean would have attended Northwoods Middle School had he enrolled in Respondent's school
system for the 1993-94 school year. Northwoods Middle School operates an inclusion program for many of
its exceptional students through which special education services are provided in the regular classroom. The
proposed lEP would have placed Sean in this inclusion program. Respondent explained the inclusion program
to Petitioner at the August 20, 1993, meeting.
9:11 NORTH CAROLINA REGISTER September 1, 1994 866
CONTESTED CASE DECISIONS
24. Petitioners unilaterally elected not to enroll Sean at Northwoods Middle School for the 1993-
94 school year and instead enrolled him at Grace Baptist School, a private parochial school.
25. Respondent agreed to provide speech therapy to Sean during the 1993-94 school year and to
bear the costs of transporting Sean to and from speech therapy.
26. Respondent also agreed to bear the expense of a neuropsychological evaluation of Sean.
27. Sean was evaluated by Dr. Stephen Hooper on February 7, 1994. Dr. Hooper holds a PhD
in School Psychology with a specialization in Child Clinical and Neuropsychology. He is an Assistant
Professor of Psychiatry at the University of North Carolina and is Director of Psychology at the Center for
Development and Learning at the UNC Medical School. Dr. Hooper also is Director of Child Adolescent
Neuropsychology Consultation Services at the medical school. Dr. Hooper has accumulated extensive
experience in evaluating children with suspected learning disabilities over the past seven years at UNC.
28. Dr. Hooper summarized his evaluation of Sean, in part, as follows:
[S]ignificant deficits were present in his attention and memory abilities.
Sean demonstrated pervasive attentional difficulties and his short-term
memory abilities were disproportionately low when compared to his
demonstrated level of intellectual functioning. When these findings are used
in tandem with his most recent psychoeducational and speech/language
evaluations, which documented specific learning difficulties in the academic
areas of reading, writing, and arithmetic, and a moderate phonological
processing disorder, respectively, Sean clearly presents as an individual in
need of special educational services and he will remain at risk for ongoing
learning difficulties. Further, his social and emotional development also has
been affected, in part, by his ongoing learning struggles, and this area of
development should be monitored carefully as well.
(Dr. Hooper's evaluation as to Sean's disabilities are found as a feet.)
29. Dr. Hooper testified that because of Sean's disability: "There needs to be some curricular
modifications for this youngster, regardless of where he may find himself schoolwise. " The undersigned finds
as a feet that curricular modifications are necessary to provide Sean with an appropriate education.
30. Dr. Hooper's report included a series of specific recommendations for Sean. The key
findings are summarized as follows:
a. A trial of stimulant medication to be monitored daily by Sean's
school/teacher in conjunction with a school psychologist;
b. Special education services to address Sean's reading, writing, and arithmetic
needs, with related services for speech/language impairments;
c. Consultation with an occupational therapist, access to a computer and
assistance in gaining word processing skills; and
d. The use of specific instructional strategies, including an increase in the
personal relevance and meaningfulness of Sean's school work, "staging" his writing tasks,
employing alternative testing methods that take advantage of Sean's strengths in recognition
memory, routine repetition of materials, and the use of recall strategies including mnemonics,
chunking, verbal mediation and verbal rehearsal.
867 9:11 NORTH CAROUNA REGISTER September 1, 1994
CONTESTED CASE DECISIONS
3 1 . Because of indications that Sean's difficulty in school was affecting his social and emotional
development, Dr. Hooper also advised that his teachers avoid potential embarrassment in the classroom
setting.
32. Dr. Hooper's opinion was that Sean should be taught by a teacher who was both sensitive
to his learning disability and trained to address learning disabilities.
33. Dr. Hooper testified and the undersigned finds as a fact that the lEP proposed by Respondent
for the 1993-94 school year contained provisions that addressed Sean's learning disabilities and contained
many of Dr. Hooper's recommended strategies.
34. After Respondent received Dr. Hooper's report, it issued a May 3, 1994, letter to Petitioner
that proposed to supplement Sean's lEP with additional instructional strategies identified by Dr. Hooper.
35. Dr. Hooper's opinion after reviewing several of Sean's most recent lEPs was that these lEPs
were appropriate.
36. The curriculum at Grace Baptist School is based on materials provided by the Accelerated
Christian Education (ACE) program. The curriculum is based on workbooks called "paces," which students
complete on their own schedule and initiative. Students are required to repeat a "pace" until they are able
to score 80 percent or higher on an examination at the end of the "pace" .
37. Linda Sutherland is Sean's elementary teacher at Grace Baptist School.
38. While the ACE program is individualized in the sense that students work at different levels,
the ACE curriculum as taught at Grace Baptist School does not vary from student to student.
39. Sean, in the opinion of Ms. Sutherland, is progressing commendably in the structure of
education at Grace Baptist School and Sean appears to be comfortable in this educational surrounding. Ms.
Sutherland and Sean appear to have a good student-teacher relationship.
40. Mrs. Sutherland testified, and the undersigned finds as a fact, that she lacks any specialized
training in learning disabilities or programs for exceptional children and that no teacher at Grace Baptist is
certified to teach exceptional children.
41. Grace Baptist School did not utilize any diagnostic tests other than ACE "paces" in
determining the appropriate curriculum for Sean.
42. Ms. Sutherland did not believe that Sean required special education services and that she had
not adopted suggestions from Dr. Hooper's report to modify Sean's curriculum or her teaching strategies.
43. While the evidence indicated that the curriculum at Grace Baptist School may be appropriate
for many students, this school does not have the ability to provide technical expertise or specialized strategies
to students with learning disabilities. The curriculum at Grace Baptist School is not readily adaptable to
address learning disabilities such as those of Sean and none of the faculty at Grace Baptist School has any
special training in teaching students with learning disabilities or other exceptionalities. Grace Baptist School
has not modified its curriculum to address Sean's specific learning disability.
Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following:
CONCLUSIONS OF LAW
1 . The Office of Administrative Hearings has jurisdiction over the person and subject matter of
this contested case pursuant to Chapters 115C and 150B of the North Carolina General Statutes.
9:11 NORTH CAROLINA REGISTER September 1, 1994 868
CONTESTED CASE DECISIONS
2. As a result of Sean's specific learning disability as diagnosed by Dr. Hooper and as defined
in Section 1509H of the North Carolina Procedures Governing Programs and Services for Children with
Special Needs, Sean is a child with "special needs" entitled to special education and related services pursuant
to the Individual's With Disabilities Education Act, 20 U.S.C. 1401, et seg., N.C. Gen. Stat. 106, et seq..
and the North Carolina Procedures Governing Programs and Services for Children with Special Needs.
3. Respondent has complied with all procedural requirements of the state and federal special
education laws. Sean's latest lEP was devised based upon the testing and evaluation of two experts.
4. The individualized educational program (lEP), proposed by Respondent for Sean for the 1993-
94 school year was appropriate within the meaning of state and federal special education laws. The proposed
lEP contained teaching goals, teaching strategies, curricular modification and other features appropriate to
address Sean's learning disability. Sean would have benefitted from remaining in the Respondent's school
system to act upon the recommendations of the experts who evaluated Sean.
5. The educational program provided to Sean by Grace Baptist School for the 1993-94 school
year was not appropriate in light of his learning disability (there was no special education program) and this
educational program is not in substantial compliance with the requirements of state and federal educational
laws as applied to public institutions."
6. Petitioners are not entitled to reimbursement for the cost of Sean's educational placement at
Grace Baptist School for the 1993-94 school year because: (a) Respondents made available an educational
plan and opportunities at Northwoods Middle School that would have provided Sean with a free and
appropriate public education in the least (appropriate) restrictive environment; and (b) the program in which
Sean was enrolled for the 1993-94 academic year was not appropriate to meet his special education needs.
7. Petitioners are not entitled to prospective placement and costs at Grace Baptist School for the
1994-95 school year for the reasons set forth in item 6 above and because Grace Baptist School is unable to
offer expertise or services appropriate to address Sean's learning disability.
Based upon the foregoing Stipulations, Findings of Fact and Conclusions of Law, the undersigned
makes the following:
FINAL DECISION
Petitioner's requests for reimbursement from Respondent for the cost of Sean Granville's educational
placement at Grace Baptist School for the 1993-94 school year and for prospective costs for tuition at Grace
Baptist School for the 1994-95 school year are denied.
NOTICE
In order to appeal this Decision, the person seeking review must file a written notice of appeal with
the North Carolina Superintendent of Public Instruction. The written notice of appeal must be filed within
thirty (30) days after the person is served with a copy of this Decision. G.S. 115C-1 16(h) and (i).
This the 1st day of August, 1994.
Julian Mann, III
Chief Administrative Law Judge
**There is no specific finding or conclusion of law as to whether Sean is benefitting from his parochial
school education. The evidence was not sufficient to make a finding. However, it is unnecessary to make
such a determination once it is concluded that this parochial school's special education program is nonexistent.
869 9:11 NORTH CAROLINA REGISTER September 1, 1994
CONTESTED CASE DECISIONS
STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
94 ABC 0257
ALONZA MITCHELL
Petitioner,
ALCOHOLIC BEVERAGE CONTROL
COMMISSION
Respondent.
RECOMMENDED DECISION
FOR THE RESPONDENT:
The above-entitled matter was heard before Fred G. Morrison, Jr. , Senior Administrative Law Judge,
on June 16, 1994, in New Hanover County, North Carolina.
This hearing was initiated at the request of the Petitioner after the Respondent disapproved his
application for ABC permits at his establishment known as Club New World located at 2000 Saw Mill Road,
Leland, North Carolina.
APPEARANCES
FOR THE PETITIONER: Andrew L. Waters
Attorney at Law
Post Office Box 936
Wilmington, NC 28402
Phone: (910) 343-0610
Glenn B. Lassiter, Jr.
Deputy General Counsel
North Carolina ABC Commission
Post Office Box 26687
Raleigh, NC 27611-6687
ISSUE
Whether the Petitioner's application for ABC permits was properly denied?
FINDINGS OF FACT
From official documents in the file, sworn testimony of the witnesses and other competent and
admissible evidence, it is found as a feet that:
1. Sometime prior to January 14, 1994, the Petitioner filed an application for ABC permits for
on premise malt beverage, unfortified wine, fortified wine, and mixed beverages at the location known as Club
New Worid, 2000 Saw Mill Road, Leland, North Carolina.
9:11
NORTH CAROLINA REGISTER
September 1, 1994
870
CONTESTED CASE DECISIONS
2. By Notice of Rejection from the Respondent dated February 2, 1994, the Petitioner was
advised that the requested ABC permits were denied for the following reasons:
a. Local government objections to location G.S. 18B-901(b);
b. Location not a suitable place to hold ABC permits due to reputation of the location
G.S. 18B-901(c).
3. Petitioner filed a timely petition for a contested case hearing alleging that the agency:
a. Deprived him of property rights;
b. Otherwise substantially prejudiced his rights; and based on these facts the agency has
exceeded its authority or jurisdiction;
c. Acted erroneously;
d. Failed to use proper procedure;
e. Acted arbitrarily or capriciously; or
f. Failed to act as required by law or rule.
4. ALE agent, Mark Senter, objected to the location because of a previous order of revocation
dated January 14, 1994 and because of potential crowd control problems. He felt the limited number of
deputy sheriffs on duty at those times the club would be open might be inadequate due to the number of
patrons regularly in attendance.
5. The Petitioner was in no way involved in the matter that resulted in the previous order of
revocation and is and has no relationship with the owner and prior operator of the club except as lessee.
Further, there is no evidence that the club's crowd control, its security and law enforcement coverage in the
community is less than adequate.
6. By Local Government Opinion Form, Mike Speck, ABC Officer, objected to the issuance of
permits. The form alleged that Mitchell's earlier application for permits for Club Flavors, located at 5307
Market Street, Wilmington, N.C. was denied on April 7, 1992. It alleged that this denial resulted in a permit
revocation which rendered Mr. Mitchell ineligible to apply or secure an ABC permit for at least 3 years.
7. The April 7, 1992 denial resulted in the revocation of the temporary permits issued pending
Commission decision. The applicant never possessed the permanent permits for which he applied. As a
matter of course, any application that is denied results in the revocation of its temporary permits and whether
such revocation initiates the three year ineligibility is at best subject to varying interpretation.
8. The Local Government Opinion Form alleged pending charges against the applicant for
falsifying information on the Club New Vtbrld application. It was alleged that the falsification consisted of
improperly spelling his name and his failure to mention the Club Flavors revocation. The applicant denied
the accusations of filing a false application, stating that he used the spelling of his name he has been
accustomed to and used since high school and explained that his negative response to the question "Whether
you had any permit previously revoked within three years?", was the result of his discussion with both the
regional and state ABC offices and his resultant understanding that the question referred to a revocation of
a permanent permit, which he never possessed.
9. The Local Government Opinion Form alleged pending charges against the applicant for
possession of spirituous liquors upon the premises where possession or consumption was not authorized by
ABC Law. The applicant denies illegal possession of spirituous liquors and there was no showing convincing
this trier of fact that such illegal possession took place.
10. The form also reflected Officer Speck's objection to the location based upon past reputation.
There was no elaboration by the Respondent on the reputation of Club New Vtbrld other than the reference
to the January 14, 1994, revocation discussed hereinabove. At that time the club was under different
ownership and no similar violation of ABC laws was introduced. The Petitioner testified as to the good
reputation of the club.
871 9:11 NORTH CAROUNA REGISTER September 1, 1994
CONTESTED CASE DECISIONS
11. Alonza Mitchell is a suitable person to hold an ABC permit.
12. The location of 2000 Saw Mill Road, Leland, North Carolina is suitable.
13. There are no statutory reasons why ABC permits should not be allowed at Club New World.
CONCLUSIONS OF LAW
1 . The North Carolina Alcoholic Beverage Control Commission has the authority to determine
the qualifications of an applicant and the suitability of a location for the issuance of ABC permits, and to issue
or deny issuance of permits according to the ABC law.
2. Alonza Mitchell is a suitable person to hold a permit, and Club New World is a suitable
location for a permit.
3. The Petitioner's application for ABC permits was improperly denied.
RECOMMENDED DECISION
I hereby recommend that the Respondent's decision to disapprove Petitioner's application be reversed,
and the permits be issued to Alonza Mitchell.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute
150B-36(b).
NOTICE
The agency making the final decision in this contested case is required to give each party an
opportunity to file exceptions to this recommended decision and to present written arguments to those in the
agency who will make the final decision. G.S. 150B-36(a).
The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.
The agency that will make the final decision in this contested case is the North Carolina Alcoholic
Beverage Control Commission.
This the 27th of July, 1994.
Fred G. Morrison Jr.
Senior Administrative Law Judge
9:11 NORTH CAROLINA REGISTER September 1, 1994 872
NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM
1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these,
titles and chapters, are mandatory: The major subdivision of the NCAC Is the title. Each major
department In the North Carolina executive branch of government has been assigned a title number.
Titles are further broken down Into chapters \'t'hlch shall be numerical In order. The other two,
subchapters and sections are optional subdivisions to be used by agencies when appropriate.
TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE DEPARTMENT LICENSING BOARDS CHAPIER
1
Administration
Acupuncture
1
2
Agriculture
Architecture
2
3
Auditor
Auctioneers
4
4
Commerce
Barber Examines
6
5
Correction
Certified Public Accountant Examiners
8
6
Council of State
Chiropractic Examiners
10
7
Cultural Resources
General Contractors
12
8
Elections
Cosmetic Art Examiners
14
9
Governor
Dental Examiners
16
10
Human Resources
Dietetics/Nutrition
17
11
Insurance
Electrical Contractors
18
12
Justice
Electrolysis
19
13
Labor
Foresters
20
14A
Crime Control & Public Safety
Geologists
21
15A
Environment, Health, and Natural
Hearing Aid Dealers and Fitters
22
Resources
landscape Architects
26
16
Public Education
I landscape Contractors
28
17
Revenue
Marital and Family Therapy
31
18
Secretar>' of State
Medical Examiners
32
19A
Transportation
Midwifery Joint Committee
33
20
Treasurer
Mortuary Science
34
*21
Occupational Licensing Boards
Nursing
36
22
Administrative Procedures
Nursing Home Administrators
37
23
Community Colleges
Occupational Therapists
38
24
Independent Agencies
Opticians
40
25
State Personnel
Optometry
42
26
Administrative Hearings
Osteopathic Examination & Reg. (Repealed)
44
Pharmacy
46
Physical Therapy Examiners
48
Plumbing, Heating & Fire Sprinkler Contractors
50
Podiatry Examiners
52
Professional Counselors
53
Practicing Psychologists
54
Professional Engineers & T unA Surveyors
56
Real Estate Appraisal Board
57
Real Estate Commission
58
Refrigeration Examiners
60
Sanitarian Examiners
62
Social Work Certification
63
Speech & Language Pathologists & Audiologists
64
Therapeutic Recreation Certification
65
Veterinary Medical Board
66
Note: Title 21 contains the chapters of the various occupational licensing boards.
873
9:11
NORTH CAROLINA REGISTER
September 1, 1994
CUMULATIVE INDEX
CUMULATIVE INDEX
(April 1994 - March 1995)
Pages Issue
1 - 75 1 - April
76 - 122 2 - April
123 - 226 3 - May
227 - 305 4 - May
306 - 348 5 - June
349 - 411 6 - June
412 - 503 7 - July
504 - 587 8 - July
588 - 666 9 - August
667 - 779 10 - August
780 - 876 11 - September
Unless otherwise identified, page references in this Index are to proposed rules.
AGRICULTURE
Plant Industry, 127
COMMERCE
Alcoholic Beverage Control Commission, 423
Energy Division, 4
CRIME CONTROL AND PUBLIC SAFETY
State Highway Patrol, Division of, 243
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
Coastal Management, 443, 825
DEM/ Air Quality, 80, 805
Departmental Rules, 254
Environmental Management, 81, 258, 352, 616
Health Services, 323, 370, 445, 834
Marine Fisheries Commission, 820
Mining Commission, 442
NPDES Permit, 3, 232
Radiation Protection Commission, 678
Solid Waste Management, 171, 364
Water Resources, 165, 255
Wildlife Resources Commission, 38, 42, 84, 358, 830
Wildlife Resources Commission Proclamation, 125
FINAL DECISION LETTERS
Voting Rights Act, 2, 312, 506, 594
GENERAL STATUTES
Chapter 150B, 780
9:11 NORTH CAROLINA REGISTER September 1, 1994 874
CUMULATIVE INDEX
GOVERNOR/LT. GOVERNOR
Executive Orders, 1, 123, 227, 306, 349, 412, 504, 588, 667
HUMAN RESOURCES
Child Day Care Commission, 10
Children's Services, 136
Day Care Rules, 148
Departmental Rules, 668
Facility Ser%'ices, 4, 128, 423, 509, 668
Medical Assistance, 318, 440, 513, 597
Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36, 313, 430
Social Services, 136, 595, 802
Vocational Rehabilitation Services, 434
ESDEPENDENT AGENCIES
State Health Plan Purchasing Alliance Board, 99
INSURANCE
Life and Health Division, 525
Medical Database Commission, 605
Multiple Employer Welfare Arrangements, 76
Special Services Division, 76
JUSTICE
Alarm Systems Licensing Board, 351, 614, 804
Criminal Justice Education and Training Standards Commission, 149
Private Protective Ser\'ices, 802
Sheriffs' Education & Training Standards Commission, 670
State Bureau of Investigation, 234, 530
LABOR
Mine and Quarry Division, 239
OSHA, 77, 160, 675
Variance, 230
LICENSING BOARDS
Acupuncture Licensing Board, 44
Auctioneers Licensing Board, 836
Barber Examiners, 563
Chiropractic Examiners, 376
Cosmetic Art Examiners, 280
Landscape Architects, Board of, 95
Medical Examiners, 192, 565
Mortuary Science, 720
Nursing, Board of, 45, 724
Opticians, Board of, 845
Optometry, Board of Examiners, 194
Physical Therapy Examiners, 566
Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96, 725
Practicing Psychologists, Board of, 97
Professional Counselors, Board of Licensed, 50
Professional Engineers and Land Surv^ors, 728
Sanitarian Examiners, 730
875 9:11 NORTH CAROLINA REGISTER September 1, 1994
CUMULATIVE INDEX
LIST OF RULES CODIFIED
List of Rules Codified, 53, 196, 281, 378, 635, 742
PUBLIC EDUCATION
Elementary and Secondary Education, 375, 540
SECRETARY OF STATE
Land Records Management Division, 712
Securities Division, 476, 616, 709
STATE PERSONNEL
Office of State Personnel, 477, 847
TAX REVIEW BOARD
Orders of Tax Review, 415
TRANSPORTATION
Highways, Division of, 85, 718
Motor Vehicles, Division of, 89, 276, 542
9:11
NORTH CAROUNA REGISTER
September 1, 1994
876
NORTH CAROLINA ADMINISTRATIVE CODE
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